<PAGE>
As filed with the Securities and Exchange Commission on July 19, 1995
Registration No. 33-
======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________________
CYPRUS AMAX MINERALS COMPANY
(Exact name of registrant as specified in its charter)
______________________________
DELAWARE 36-2684040
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
9100 EAST MINERAL CIRCLE
ENGLEWOOD, COLORADO 80112
(303) 643-5000
(Address of principal executive offices)
CYPRUS AMAX MINERALS COMPANY THRIFT PLAN FOR BARGAINING UNIT EMPLOYEES
(Full title of plan)
______________________________
PHILIP C. WOLF, ESQ. PAUL HILTON, ESQ.
SENIOR VICE PRESIDENT, DAVIS, GRAHAM & STUBBS, L.L.C.
GENERAL COUNSEL AND SECRETARY 370 SEVENTEENTH STREET
9100 EAST MINERAL CIRCLE SUITE 4700
ENGLEWOOD, COLORADO 80112 DENVER, COLORADO 80202
(303) 643-5000 (303) 892-9400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
Amount maximum maximum
Title of securities to be offering price aggregate Amount of
to be registered registered per share<F1> offering price<F1> registration fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (no par value) . . . . . . . . . 10,000 shares $30.625 $306,250 $105.60
Interests in the Cyprus Amax Minerals
Company Thrift Plan for Bargaining
Unit Employees . . . . . . . . . . . . . . (2) (2) (2) (2)
====================================================================================================================
<FN>
<F1> Estimated solely for the purposes of calculating the amount of the registration fee. The price per share
and aggregate offering price are based upon the average of the high and low prices of the Company's Common
Stock on July 14, 1995, as reported on the New York Stock Exchange.
<F2> Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an
indeterminate amount of plan interests to be offered or sold pursuant to the Cyprus Amax Minerals Company
Thrift Plan for Bargaining Unit Employees.
<F3> Pursuant to Rule 457(h)(2) under the Securities Act of 1933, no separate fee is required to register plan
interests.
/TABLE
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Cyprus Amax Minerals Company (the "Company" or "Registrant"), and
the Cyprus Amax Minerals Company Thrift Plan for Bargaining Unit
Employees (the "Plan") hereby state that the following documents filed
with the Securities and Exchange Commission (the "Commission") are
hereby incorporated or deemed to be incorporated in this Registration
Statement by reference as of their date of filing with the Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, filed with the Commission on March 28, 1995;
(b) Proxy Statement for the Company's 1994 Annual Meeting of
Stockholders, filed with the Commission on March 24, 1995;
(c) Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1995, as filed with the Commission on May 10, 1995;
(d) Current Report on Form 8-K, filed with the Commission on
May 11, 1995; and
(e) The description of the Company's Common Stock, no par value,
contained in its Registration Statement on Form 10, dated July 11,
1985, and any amendments thereto.
All other documents filed by the Company or the Plan with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") subsequent to the
date of this Registration Statement and prior to the filing of a
Post-Effective Amendment to this Registration Statement indicating
that all securities offered under the Registration Statement have been
sold, or deregistering all securities then remaining unsold, are also
incorporated herein by reference and shall be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated by, or deemed
to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
4. DESCRIPTION OF SECURITIES.
Not applicable.
II-1
<PAGE>
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that
a corporation organized under Delaware law has the power to indemnify
any person made or threatened to be made a party to a threatened,
pending or completed proceeding, whether civil, criminal,
administrative or judicial, because he or she is or was a director,
officer, employee, or agent of such corporation. In a suit brought to
obtain a judgment in a corporation's favor, a corporation may
indemnify such persons for expenses, including attorney's fees,
actually and reasonably incurred in connection with the defense or
settlement of the case, except that no indemnification may be made if
such person has been adjudged to be liable. In any other type of
proceeding, the indemnification may extend to judgments, fines, and
amounts paid in settlement, as well as to expenses. In a civil
proceeding, there can be no indemnification under the statute unless
it appears that the person seeking indemnification acted in good faith
and in a manner he or she reasonably believed to be in the best
interests of the corporation. In a criminal proceeding, the
indemnified party must have had no reasonable cause to believe his or
her conduct was unlawful.
Article VI of the Company's Bylaws requires the Company to
indemnify its officers and directors to the full extent permitted by
law for expenses relating to actual or threatened lawsuits against
them arising out of their corporate positions. The Bylaws further
provide that this indemnification is not exclusive of other rights to
which the indemnified parties may be entitled.
The Company has entered into agreements ("Indemnity Agreements")
with certain of its officers and directors providing for
indemnification for damages, judgments, settlements, investigations
and costs of legal and administrative proceedings. The Indemnity
Agreements provide that no indemnification will be made for fines or
amounts which the Company may be prohibited by applicable law from
paying or for settlements or costs of investigations made without the
Company's consent. In addition, the Company will not be liable for
amounts in connection with a claim for which the person is otherwise
reimbursed or indemnified, if the person obtained an improper personal
benefit, or the claim was caused by conduct adjudged to be fraudulent
or deliberately dishonest.
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
8. EXHIBITS
4.1 Certificate of Incorporation, incorporated by reference from
Exhibit 3(a) to the Annual Report on Form 10-K for the
period ended December 31, 1989, and from Exhibit 3.1 to the
Report on Form 8-K dated May 27, 1993.
II-2
<PAGE>
4.2 By-Laws, incorporated by reference from Exhibit 3(b) to the
Annual Report on Form 10-K for the period ended December 31,
1991, and from Exhibit 3.2 to the Report on Form 8-K dated
November 30, 1993.
4.3 Certificate of Designations of Series A Junior Participating
Preferred Stock, incorporated by reference from Exhibit 3(a)
to the Annual Report on Form 10-K for the period ended
December 31, 1988, and from Exhibit 7 to the Report on Form
8-A/A dated June 29, 1993.
4.4 Rights Agreement between The Chase Manhattan Bank, N.A. and
Cyprus Minerals Company, dated February 23, 1989,
incorporated by reference, from Exhibit 2 to the Report on
Form 8-K dated January 29, 1990, from Exhibit 4 to the
Report on Form 8-K dated January 29, 1990, and from
Exhibit 1 to the Report on Form 8-K dated June 29, 1993.
4.5 Certificate of Adjustment dated as of January 22, 1990,
incorporated by reference from Exhibit 3 to the Report on
Form 8-K dated January 29, 1990.
4.6 Cyprus Amax Minerals Company Thrift Plan for Bargaining Unit
Employees.
5.1 Not applicable.
23.1 Consent of Price Waterhouse.
The Registrant has submitted the Plan to the Internal Revenue
Service ("IRS") and has received a favorable IRS determination letter
with respect to the Plan. The Registrant hereby undertakes to submit
any amendment to the Plan to the IRS in a timely manner and will make
all changes required by the IRS in order to qualify the amended Plan.
No opinion of counsel with respect to the shares registered
hereby is necessary in that such shares are not original issuance
securities.
9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not
previously disclosed in the Registration Statement, or any material
change to such information in the Registration Statement; (2) that,
for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and (3) to remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of
the offering.
II-3
<PAGE>
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of either the Registrant's or the Plan's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions (see Item 6 above), or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Englewood,
State of Colorado, on the 19th day of July, 1995.
CYPRUS AMAX MINERALS COMPANY
By: Gerald J. Malys
--------------------------
Gerald J. Malys
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Milton H. Ward Co-Chairman of the Board, July 19, 1995
- ------------------------- Director, President, and Chief
Milton H. Ward Executive Officer
Allen Born Co-Chairman of the Board and July 19, 1995
- ------------------------- Director
Allen Born
Gerald J. Malys Senior Vice President and July 19, 1995
- ------------------------- Chief Financial Officer
Gerald J. Malys (Principal Financial Officer)
John Taraba Vice President and Controller July 19, 1995
- ------------------------- (Principal Accounting Officer)
John Taraba
Linda G. Alvarado Director July 19, 1995
- -------------------------
Linda G. Alvarado
George S. Ansell Director July 19, 1995
- -------------------------
George S. Ansell
II-5
<PAGE>
William C. Bousquette Director July 19, 1995
- -------------------------
Willian C. Bousquette
Thomas V. Falkie Director July 19, 1995
- -------------------------
Thomas V. Falkie
Ann Maynard Gray Director July 19, 1995
- -------------------------
Ann Maynard Gray
James C. Huntington, Jr. Director July 19, 1995
- -------------------------
James C. Huntington, Jr.
Michael A. Morphy Director July 19, 1995
- -------------------------
Michael A. Morphy
Rockwell A. Schnabel Director July 19, 1995
- -------------------------
Rockwell A. Schnabel
Theodore M. Solso Director July 19, 1995
- -------------------------
Theodore M. Solso
John Hoyt Stookey Director July 19, 1995
- -------------------------
John Hoyt Stookey
James A. Todd, Jr. Director July 19, 1995
- -------------------------
James A. Todd, Jr.
Billie B. Turner Director July 19, 1995
- -------------------------
Billie B. Turner
II-6<PAGE>
CYPRUS AMAX MINERALS COMPANY THRIFT PLAN FOR BARGAINING UNIT
EMPLOYEES.
Pursuant to the requirements of the Securities Act of 1933
the Plan Administrator has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Englewood, State of Colorado, on July 19, 1995.
CYPRUS AMAX MINERALS COMPANY
By: Philip C. Wolf
--------------------------------
Philip C. Wolf, Plan
Administrator
II-7
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
______________________________________________________________________
4.1 Certificate of Incorporation, incorporated by
reference from Exhibit 3(a) to the Annual Report
on Form 10-K for the period ended December 31,
1989, and from Exhibit 3.1 to the Report on
Form 8-K dated May 27, 1993.
4.2 By-Laws, incorporated by reference from
Exhibit 3(b) to the Annual Report on Form 10-K for
the period ended December 31, 1991, and from
Exhibit 3.2 to the Report on Form 8-K dated
November 30, 1993.
4.3 Certificate of Designations of Series A Junior
Participating Preferred Stock, incorporated by
reference from Exhibit 3(a) to the Annual Report
on Form 10-K for the period ended December 31,
1988, and from Exhibit 7 to the Report on
Form 8-A/A dated June 29, 1993.
4.4 Rights Agreement between The Chase Manhattan Bank,
N.A. and Cyprus Minerals Company, dated
February 23, 1989, incorporated by reference, from
Exhibit 2 to the Report on Form 8-K dated
January 29, 1990, from Exhibit 4 to the Report on
Form 8-K dated January 29, 1990, and from
Exhibit 1 to the Report on Form 8-K dated June 29,
1993.
4.5 Certificate of Adjustment dated as of January 22,
1990, incorporated by reference from Exhibit 3 to
the Report on Form 8-K dated January 29, 1990.
4.6 Cyprus Amax Minerals Company Thrift Plan for
Bargaining Unit Employees.
5.1 Not Applicable.
23.1 Consent of Price Waterhouse.
II-8
CYPRUS AMAX MINERALS COMPANY
THRIFT PLAN
FOR BARGAINING UNIT EMPLOYEES
Effective August 1, 1965
Amended and Restated Effective January 1, 1989
(Incorporating Amendments Effective Through January 1, 1994)
<PAGE>
CYPRUS AMAX MINERALS COMPANY
THRIFT PLAN
FOR BARGAINING UNIT EMPLOYEES
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . 2
1.01 "Act" or "ERISA". . . . . . . . . . . . . . . . . . . . 2
1.02 "Annual Additions". . . . . . . . . . . . . . . . . . . 2
1.03 "Beneficial Owner". . . . . . . . . . . . . . . . . . . 2
1.04 "Change in Control" . . . . . . . . . . . . . . . . . . 2
1.05 "Code". . . . . . . . . . . . . . . . . . . . . . . . . 5
1.06 "Committee" . . . . . . . . . . . . . . . . . . . . . . 5
1.07 "Company" . . . . . . . . . . . . . . . . . . . . . . . 5
1.08 "Compensation". . . . . . . . . . . . . . . . . . . . . 5
1.09 "Current Market Value". . . . . . . . . . . . . . . . . 6
1.10 "Defined Benefit Plan Fraction" . . . . . . . . . . . . 6
1.11 "Defined Contribution Plan Fraction". . . . . . . . . . 6
1.12 "Distribution Date" . . . . . . . . . . . . . . . . . . 6
1.13 "Effective Date". . . . . . . . . . . . . . . . . . . . 7
1.14 "Eligibility Date". . . . . . . . . . . . . . . . . . . 7
1.15 "Eligible Employee" . . . . . . . . . . . . . . . . . . 7
1.16 "Eligible Participant". . . . . . . . . . . . . . . . . 7
1.17 "Employer". . . . . . . . . . . . . . . . . . . . . . . 7
1.18 "Exchange Act". . . . . . . . . . . . . . . . . . . . . 7
1.19 "Highly Compensated Employee" . . . . . . . . . . . . . 7
1.20 "Hour of Service" . . . . . . . . . . . . . . . . . . . 7
1.21 "Matching Contributions". . . . . . . . . . . . . . . . 8
1.22 "One-Year Break in Service" . . . . . . . . . . . . . . 8
1.23 "Participant" . . . . . . . . . . . . . . . . . . . . . 9
1.24 "Permanent Layoff". . . . . . . . . . . . . . . . . . . 9
1.25 "Plan". . . . . . . . . . . . . . . . . . . . . . . . . 9
1.26 "Plan Year" . . . . . . . . . . . . . . . . . . . . . . 9
1.27 "Related Company" . . . . . . . . . . . . . . . . . . . 9
1.28 "Retirement". . . . . . . . . . . . . . . . . . . . . . 10
1.29 "Rollover Contribution" . . . . . . . . . . . . . . . . 10
1.30 "Section 401(k) Contribution" . . . . . . . . . . . . . 10
1.31 "Section 415 Compensation". . . . . . . . . . . . . . . 10
1.32 "Service" . . . . . . . . . . . . . . . . . . . . . . . 11
1.33 "Subsidiary". . . . . . . . . . . . . . . . . . . . . . 11
1.34 "Termination of Employment" . . . . . . . . . . . . . . 11
1.35 "Total and Permanent Disability". . . . . . . . . . . . 11
1.36 "Trustee" . . . . . . . . . . . . . . . . . . . . . . . 11
1.37 "Valuation Date". . . . . . . . . . . . . . . . . . . . 11
1.38 "Voluntary Contributions" . . . . . . . . . . . . . . . 11
1.39 "Year of Service" . . . . . . . . . . . . . . . . . . . 11
ARTICLE II PARTICIPATION ELIGIBLE FOR MATCHING
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . 13
2.01 Eligibility . . . . . . . . . . . . . . . . . . . . . . 13
2.02 Election by Participant . . . . . . . . . . . . . . . . 13
2.03 Types of Contributions That Can Be Elected. . . . . . . 14
2.04 Change of Election. . . . . . . . . . . . . . . . . . . 14
i<PAGE>
Page
----
2.05 Cessation of Participation. . . . . . . . . . . . . . . 14
2.06 Section 401(k) Contributions. . . . . . . . . . . . . . 14
2.07 After-Tax Contributions . . . . . . . . . . . . . . . . 16
ARTICLE III CONTRIBUTIONS BY PARTICIPANTS . . . . . . . . . . . 19
3.01 Participant Contributions . . . . . . . . . . . . . . . 19
3.02 Crediting of Contributions. . . . . . . . . . . . . . . 19
3.03 Rollover Contributions. . . . . . . . . . . . . . . . . 19
ARTICLE IV COMPANY CONTRIBUTIONS . . . . . . . . . . . . . . . 21
4.01 Company Contributions . . . . . . . . . . . . . . . . . 21
4.02 Maximum Contributions . . . . . . . . . . . . . . . . . 21
ARTICLE V INVESTMENT OF FUNDS . . . . . . . . . . . . . . . . 23
5.01 Investment of Contributions . . . . . . . . . . . . . . 23
5.02 Participant Contributions . . . . . . . . . . . . . . . 23
5.03 Company Contributions . . . . . . . . . . . . . . . . . 24
5.04 Participant Investment Direction. . . . . . . . . . . . 24
5.05 Participant Risk. . . . . . . . . . . . . . . . . . . . 24
5.06 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.07 Voting of Company Stock . . . . . . . . . . . . . . . . 24
ARTICLE VI VALUATION OF TRUST. . . . . . . . . . . . . . . . . 26
6.01 Valuation of the Trust. . . . . . . . . . . . . . . . . 26
ARTICLE VII METHOD OF RECORDING PARTICIPANTS' INTERESTS . . . . 27
7.01 Participants' Accounts. . . . . . . . . . . . . . . . . 27
7.02 Adjustment to Account . . . . . . . . . . . . . . . . . 27
ARTICLE VIII VESTING . . . . . . . . . . . . . . . . . . . . . . 28
8.01 Vesting . . . . . . . . . . . . . . . . . . . . . . . . 28
8.02 Years of Service for Vesting. . . . . . . . . . . . . . 28
ARTICLE IX DISTRIBUTION UPON TERMINATION OF EMPLOYMENT . . . . 29
9.01 Distributions . . . . . . . . . . . . . . . . . . . . . 29
9.02 Distribution to Vested Terminated Participant . . . . . 31
9.03 Direct Rollovers. . . . . . . . . . . . . . . . . . . . 32
ARTICLE X WITHDRAWALS AND LOANS . . . . . . . . . . . . . . . 34
10.01 Withdrawals of March 31, 1994 Accounts Before
Age 59-1/2. . . . . . . . . . . . . . . . . . . . . 34
10.02 Inservice Withdrawals of March 31, 1994 Account
After Age 59-1/2. . . . . . . . . . . . . . . . . . 35
10.03 Inservice Withdrawals After April 1, 1994. . . . . . . 35
10.04 Hardship Withdrawals After April 1, 1994 . . . . . . . 35
10.05 Withdrawal Application . . . . . . . . . . . . . . . . 39
10.06 Loans Before April 1, 1994 . . . . . . . . . . . . . . 39
10.07 Loans Made After April 1, 1994 . . . . . . . . . . . . 42
10.08 Loan Procedures. . . . . . . . . . . . . . . . . . . . 44
ii<PAGE>
Page
----
ARTICLE XI BENEFICIARIES AND GUARDIANS OR LEGAL
REPRESENTATIVES . . . . . . . . . . . . . . . . . . 47
11.01 Beneficiary Designation. . . . . . . . . . . . . . . . 47
11.02 Incapacity . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE XII THE TRUSTEE . . . . . . . . . . . . . . . . . . . . 48
12.01 Trustee. . . . . . . . . . . . . . . . . . . . . . . . 48
12.02 Trust Fund . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE XIII THE COMMITTEE . . . . . . . . . . . . . . . . . . . 49
13.01 Committee. . . . . . . . . . . . . . . . . . . . . . . 49
13.02 Quorum . . . . . . . . . . . . . . . . . . . . . . . . 49
13.03 Procedure. . . . . . . . . . . . . . . . . . . . . . . 49
13.04 Powers and Duties. . . . . . . . . . . . . . . . . . . 49
13.05 Disbursements from the Trust . . . . . . . . . . . . . 50
13.06 Appointment of Investment Manager. . . . . . . . . . . 50
13.07 Appointment of Insurance Company . . . . . . . . . . . 51
13.08 Records. . . . . . . . . . . . . . . . . . . . . . . . 51
13.09 Expenses . . . . . . . . . . . . . . . . . . . . . . . 51
13.10 Claims Procedure . . . . . . . . . . . . . . . . . . . 51
ARTICLE XIV NON-ASSIGNABILITY OF FUNDS. . . . . . . . . . . . . 54
14.01 Non-assignment . . . . . . . . . . . . . . . . . . . . 54
ARTICLE XV AMENDMENT, TERMINATION OR MERGER. . . . . . . . . . 55
15.01 Amendment or Termination . . . . . . . . . . . . . . . 55
15.02 No Reversion . . . . . . . . . . . . . . . . . . . . . 55
15.03 Merger, Consolidation or Transfer. . . . . . . . . . . 55
ARTICLE XVI TOP-HEAVY PROVISIONS. . . . . . . . . . . . . . . . 56
16.01 Definitions. . . . . . . . . . . . . . . . . . . . . . 56
16.02 Determination of Top-Heaviness . . . . . . . . . . . . 57
16.03 Top-Heavy Provisions . . . . . . . . . . . . . . . . . 57
ARTICLE XVII GENERAL PROVISIONS. . . . . . . . . . . . . . . . . 60
17.01 Statement of Account . . . . . . . . . . . . . . . . . 60
17.02 No Employment Rights . . . . . . . . . . . . . . . . . 60
17.03 Furnishing Data. . . . . . . . . . . . . . . . . . . . 60
17.04 Governing Law. . . . . . . . . . . . . . . . . . . . . 60
17.05 Additional Company Contributions . . . . . . . . . . . 60
17.06 Rights Affected and Preservation of Accrued
Benefit. . . . . . . . . . . . . . . . . . . . . . . . . 61
17.07 Severability of Provisions . . . . . . . . . . . . . . 61
17.08 No Interest in Fund. . . . . . . . . . . . . . . . . . 61
17.09 Withholding. . . . . . . . . . . . . . . . . . . . . . 61
17.10 Construction . . . . . . . . . . . . . . . . . . . . . 61
EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
iii<PAGE>
CYPRUS AMAX MINERALS COMPANY
THRIFT PLAN
FOR BARGAINING UNIT EMPLOYEES
Amax Inc. (the "Company") previously established the Amax
Inc. Employee Stock Purchase Thrift Plan (the "Plan") effective
August 1, 1965, which Plan was redesignated, effective October 1,
1986, as the Amax Inc. Thrift Plan for Bargaining Unit Employees. The
purpose of the Plan is to encourage thrift on the part of employees by
the Company matching a portion of their own contributions and thus to
enable them to participate in the Company's earnings and to build
additional funds for retirement.
Effective November 15, 1993, Amax, Inc. was merged into
Cyprus Minerals Company and as a result the Plan has been renamed to
be the Cyprus Amax Minerals Company Thrift Plan for Bargaining Unit
Employees. The Plan herein is amended and restated effective January
1, 1989, but incorporates all amendments to the Plan that are
effective through December 31, 1994.
1<PAGE>
ARTICLE I
DEFINITIONS
-----------
As used herein:
1.01 "Act" or "ERISA" shall mean the Employee
--- -----
Retirement Income Security Act of 1974, as amended.
1.02 "Annual Additions" shall mean the sum credited to
----------------
a Participant's Account for any Plan Year of (a) Employer
contributions (including Section 401(k) Contributions); (b) the lesser
of Participant contributions in excess of six percent (6%) of
Section 415 compensation or one-half (1/2) of such Participant
contributions; and (c) forfeitures.
1.03 "Beneficial Owner" shall mean, with respect to
----------------
any securities, shall mean any person who, directly or indirectly, has
or shares the right to vote or dispose of such securities or otherwise
has "beneficial ownership" of such securities (within the meaning of
Rule 13d-3 and Rule 13d-5 (as such Rules are in effect on February 1,
1991) under the Exchange Act), including pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided,
--------
however, that (i) a person shall not be deemed the Beneficial Owner
- -------
of any security as a result of any agreement, arrangement or
understanding to vote such security (x) arising solely from a
revocable proxy or consent solicited pursuant to, and in accordance
with, the applicable provisions of the Exchange Act and the rules and
regulations thereunder or (y) made in connection with, or otherwise to
participate in, a proxy or consent solicitation made, or to be made,
pursuant to, and in accordance with, the applicable provisions of the
Exchange Act and the rules and regulations thereunder, in either case
described in Clause (x) or Clause (y) above whether or not such
agreement, arrangement or understanding is also then reportable by
such person on Schedule 13D under the Exchange Act (or any comparable
or successor report), and (ii) a person engaged in business as an
underwriter of securities shall not be deemed to be the Beneficial
Owner of any securities acquired through such person's participation
in good faith in a firm commitment underwriting until the expiration
of forty days after the date of such acquisition.
1.04 "Change in Control" shall mean the satisfaction
-----------------
of one or more of the following conditions:
(a) any person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing 20
percent or more of the combined voting power of
2<PAGE>
the Company's then-outstanding securities (a "20% Beneficial Owner");
provided, however, that (1) the term "20% Beneficial
-------- -------
Owner" shall not include any Beneficial Owner who has crossed such 20
percent threshold solely as a result of an acquisition of securities
directly from the Company, or solely as a result of an acquisition by
the Company of Company securities, until such time thereafter as such
person acquires additional voting securities other than directly from
the Company and, after giving effect to such acquisition, such person
would constitute a 20% Beneficial Owner; and (2) with respect to any
person eligible to file a Schedule 13G pursuant to Rule 13d-1(b)(1)
under the Exchange Act with respect to Company securities (an
"Institutional Investor"), there shall be excluded from the number of
securities deemed to be beneficially owned by such person a number of
securities representing not more than 10 percent of the combined
voting power of the Company's then-outstanding securities;
(b) during any period of two consecutive years
beginning after January 1, 1991, individuals who at the beginning of
such period constitute the Board of Directors of the Company together
with those individuals who first become Directors during such period
(other than by reason of an agreement with the Company in settlement
of a proxy contest for the election of directors) and whose election
or nomination for election to the Board was approved by a vote of at
least two-thirds (2/3) of the Directors then still in office who
either were Directors at the beginning of the period or whose election
or nomination for election was previously so approved (the "Continuing
Directors"), cease for any reason to constitute a majority of the
Board of Directors of the Company;
(c) the stockholders of the Company approve a merger,
consolidation, recapitalization or reorganization of the Company, or a
reverse stock split of any class of voting securities of the Company,
or the consummation of any such transaction if stockholder approval is
not obtained, other than any such transaction which would result in at
least 75% of the total voting power represented by the voting
securities of the Company or the surviving entity outstanding
immediately after such transaction being beneficially owned by persons
who together owned at least 75% of the combined voting power of the
voting securities of the Company outstanding immediately prior to such
transaction, with the relative voting power of each such continuing
holder compared to the voting power of each other continuing holder
not substantially altered as a result of the transaction; provided
--------
that, for purposes of this Paragraph, such continuity of ownership
- ----
(and preservation of relative voting power) shall be deemed to be
satisfied if the failure to meet such 75% threshold (or to preserve
such relative voting power) is due solely to the acquisition of voting
securities by an employee
3<PAGE>
benefit plan of the Company or such surviving entity or of any
subsidiary of the Company or such surviving entity;
(d) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an agreement for
the sale or disposition of all or substantially all the assets of the
Company; or
(e) any other event which the Board of Directors of
the Company determines shall constitute a Change in Control for
purposes of the Plan.
A Change in Control shall not be deemed to have occurred if
one of the following exceptions applies:
(a) Unless a majority of the Continuing Directors of
the Company determines that the exception set forth in this Paragraph
shall not apply, none of the foregoing conditions would have been
satisfied but for one or more of the following persons acquiring or
otherwise becoming the Beneficial Owner of securities of the Company:
(1) any person who has entered into a binding
agreement with the Company, which agreement has been approved by two-
thirds (2/3) of the Continuing Directors, limiting the acquisition of
additional voting securities by such person, the solicitation of
proxies by such person or proposals by such person concerning a
business combination with the Company (a "Standstill Agreement");
(2) any employee benefit plan, or trustee or
other fiduciary thereof, maintained by the Company or any subsidiary
of the Company;
(3) any subsidiary of the Company; or
(4) the Company.
(b) Unless a majority of the Continuing Directors of
the Company determines that the exception set forth in this Paragraph
shall not apply, none of the foregoing conditions would have been
satisfied but for the acquisition by the Company of another entity
(whether by the merger or consolidation, the acquisition of stock or
assets, or otherwise) in exchange, in whole or in part, for securities
of the Company, provided that, immediately following such acquisition,
the Continuing Directors constitute a majority of the Board of
Directors of the Company, or a majority of the board of directors of
any other surviving entity, and, in either case, no agreement,
arrangement or understanding exists at that time which would cause
such
4<PAGE>
Continuing Directors to cease thereafter to constitute a majority of
the Board of Directors or of such other board of directors.
Notwithstanding the foregoing, unless a majority of the
Continuing Directors determines otherwise, no Change in Control shall
be deemed to have occurred with respect to a particular Participant if
the Change in Control results from actions or events in which such
individual is a participant in a capacity other than solely as an
officer, employee or director of the Company.
1.05 "Code" shall mean the Internal Revenue Code of
----
1986, as amended.
1.06 "Committee" shall mean the Cyprus Amax Minerals
---------
Company Savings Plan Administrator as provided for in Article XIII.
1.07 "Company" shall mean, prior to November 15, 1993,
-------
Amax, Inc. and, after November 14, 1993, Cyprus Amax Minerals Company,
and any successor thereto.
1.08 "Compensation" shall mean regular remuneration,
------------
determined under rules uniformly applicable to all employees similarly
situated, paid to a Participant for service rendered to the Company or
a Subsidiary, excluding additional or special pay such as shift
differentials, overtime, living and similar allowances and incentive
compensation.
Notwithstanding the foregoing, for Plan Years beginning
before January 1, 1994, the maximum amount of an Employee's
compensation which shall be taken into account under the Plan for a
Plan Year shall be (a) $200,000 or (b) $150,000 for Plan Years
beginning on and after January 1, 1994, adjusted at the same time and
in the same manner as under section 415(d) of the Code. For purposes
of the $200,000 or $150,000 limitation referred to above, the
Compensation of any Participant who is either a 5-percent owner (as
defined in section 416(i)(1) of the Code), or one of the ten most
highly paid Highly Compensated Employees (as defined in Section 2.06
hereof) during the Plan Year ("First Participant") shall be aggregated
with the Compensation of (i) any Participant who has not attained age
19 and is a lineal descendant of the First Participant, and (ii) any
Participant who is the spouse of the First Participant. In any case
in which such aggregation would produce Compensation in excess of the
$200,000 or $150,000 limitation, the amount of the First Participant's
Compensation that is considered under the Plan shall be reduced until
the $200,000 or $150,000 limitation is met.
5<PAGE>
1.09 "Current Market Value" shall mean
--------------------
(a) as applied to any stocks, bonds or debentures
registered for trading on the New York Stock Exchange on any date,
shall mean the closing market price on the Composite Tape on such day.
(b) as applied to any other securities, the fair
market value thereof as determined by the Trustee.
1.10 "Defined Benefit Plan Fraction" shall mean a fraction,
-----------------------------
(a) the numerator of which is the projected annual
benefit (determined as of the close of the relevant year) of the
Participant under all defined benefit plans maintained by the Company,
a Related Company or any organization which bears a relation to the
Company or a Related Company described in section 414(m)(2) of the
Code, and
(b) the denominator of which is the lesser of (1) the
product of 1.25 multiplied by the dollar limitation in effect under
section 415(b)(1)(A) of the Code for the year, or (2) the product of
1.4 multiplied by the amount which may be taken into account under
section 415(b)(1)(B) of the Code with respect to the Participant under
the Plan for the year.
1.11 "Defined Contribution Plan Fraction" shall mean a
----------------------------------
fraction,
(a) the numerator of which is the sum of the Annual
Additions to a Participant's accounts under all defined contribution
plans maintained by the Company or a Related Company, and
(b) the denominator of which is the lesser of
(1) the product of 1.25 multiplied by the dollar
limitation in effect under section 415(c)(1)(A) of the Code for the
year (determined without regard to section 415(c)(6) of the Code), or
(2) the product of 1.4 multiplied by the amount
which may be taken into account under section 415(c)(1)(B) of the Code
(or sections 415(c)(7) or 415(c)(8) of the Code, if applicable) with
respect to the Participant under the Plan for the year.
1.12 "Distribution Date" shall mean the date or dates
-----------------
indicated in Section 9.01.
6<PAGE>
1.13 "Effective Date" shall mean, except as otherwise
--------------
provided herein, January 1, 1989, the effective date of this amended
and restated Plan. The original effective date was August 1, 1965.
1.14 "Eligibility Date" shall mean the first day of the
----------------
month following the month in which an employee becomes an Eligible
Employee.
1.15 "Eligible Employee" shall mean any hourly employee
-----------------
of the Company or a Subsidiary who meets the following conditions:
(a) Is in a division, class or group of employees set
forth in Exhibit A or in such other division, class or group of
employees of the Company or Subsidiary which, by appropriate action of
the Board of Directors and, if applicable, by the Subsidiary, have
been designated to be covered by the Plan;
(b) Has completed one Year of Service;
(c) Is in a unit of employees covered by a collective
bargaining agreement if such agreement provides for the application of
the Plan to the employees in such unit; and
(d) Is at least eighteen years of age.
An Employee who is such solely by reason of being a leased employee
within the meaning of section 414(n) or section 414(o) of the Code
shall not be an Eligible Employee.
1.16 "Eligible Participant" shall mean any person who
--------------------
is a "party in interest" with respect to the Plan within the meaning
of section 3(14) of ERISA.
1.17 "Employer" shall mean the Company with respect to
--------
its employees and shall mean each Subsidiary with respect to its
employees.
1.18 "Exchange Act" shall mean the Securities Exchange
------------
Act of 1934, as amended.
1.19 "Highly Compensated Employee" shall mean an
---------------------------
individual identified in Section 2.06 of the Plan.
1.20 "Hour of Service" shall mean
---------------
(a) each hour for which an employee is directly or
indirectly compensated by the Company or a Related Company for the
performance of services during the applicable computation period,
7<PAGE>
(b) each hour for which an employee is paid or
entitled to payment by the Company or a Related Company for reasons
(such as vacation, sickness and disability) other than for the
performance of duties during the applicable computational period, and
(c) each hour for which back pay, irrespective of
mitigation of damages, has either been awarded or agreed to by the
Company or a Related Company for the computational period to which it
pertains.
Hours shall be computed and credited during the applicable
computational period pursuant to section 2530.200b-2 of the Department
of Labor Regulations which is hereby incorporated by reference.
1.21 "Matching Contributions" shall mean contributions
----------------------
as defined in Section 2.07.
1.22 "One-Year Break in Service" shall mean the failure
-------------------------
to complete more than 500 hours of Service within a 12-month vesting
computation period; provided, however, that an employee's Service
shall be deemed not broken during such period as he is temporarily
disabled, on an approved leave of absence not in excess of two years,
or layoff not in excess of one year, or during such period as he is in
the Armed Forces of the United States provided he returns to active
employment within 90 days after his earliest eligibility for discharge
or release therefrom.
Notwithstanding the preceding sentence and solely for
purposes of this Paragraph, if an Eligible Employee fails to complete
more than 500 hours of Service within a 12-month vesting computation
period by reason of an absence that occurs on or after the first day
of a Plan Year beginning after 1984 and the absence arises because of
her pregnancy, the birth or adoption of the Eligible Employee's child
(or child care for a period immediately following such birth or
adoption), such Eligible Employee shall not necessarily incur a One-
Year Break in Service; rather, the Eligible Employee shall be credited
for such 12-month vesting computation period with (a) the hours of
Service for which the Eligible Employee would have received credit
(but for such absence), if determinable, or (b) eight hours of Service
per day during such absence.
If a One-Year Break in Service would not occur in the 12-
month vesting computation period that includes the beginning of such
absence even in the absence of the preceding sentence, the Eligible
Employee shall receive credit for the hours specified under (a) or (b)
above in the 12-month vesting computation period immediately following
the 12-month vesting
8<PAGE>
computation period in which such absence initially occurs solely to
prevent the occurrence of a One-Year Break in Service in such 12-month
vesting computation period.
Notwithstanding any other provision of this Paragraph, any
Eligible Employee shall not be credited with more than 501 hours of
Service by reason of such absence.
1.23 "Participant" shall mean an Eligible Employee who
-----------
has elected to participate in the Plan as provided in Article II.
1.24 "Permanent Layoff" shall mean Termination of
----------------
Employment by reason of the permanent shutdown of a plant, mine,
laboratory, department or subdivision thereof, or by reason of a
layoff which has continued in excess of one year. For the purposes of
the Plan, the layoff of a Participant whose recall to work is unlikely
in the opinion of the Participant's Employer shall be considered a
Permanent Layoff, if the Participant so elects.
1.25 "Plan" shall mean this Cyprus Amax Minerals Company
----
Thrift Plan for Bargaining Unit Employees, which is a profit sharing
plan with a cash or deferred arrangement.
1.26 "Plan Year" means the twelve-month period beginning
---------
on January 1 and ending on December 31.
1.27 "Related Company" shall mean
---------------
(a) each corporation which is a member of a controlled
group of corporations (within the meaning of section 1563(a) of the
Code, determined without regard to section 1563(a)(4) and (e)(3)(C)
thereof) of which the Company is a component member,
(b) each entity (whether or not incorporated) which is
under common control with the Company, as such common control is
defined in section 414(c) of the Code and regulations issued
thereunder,
(c) any organization which is a member of an
affiliated service group (within the meaning of section 414(m) of the
Code) of which the Company or a Related Company is a member and
(d) any organization which is required by regulations
issued under section 414(o) of the Code to be treated as a Related
Company.
The term "Related Company" shall also include each
predecessor employer to the extent required by section 414(a) of the
Code. Notwithstanding the foregoing, an organization shall
9<PAGE>
not be considered a Related Company for any purpose under the Plan
prior to the date it is considered affiliated under Clauses (a)
through (b) above.
1.28 "Retirement" shall mean
----------
(a) retirement of a Participant from the employment of
the Company or any Subsidiary, with a pension (whether immediate or
deferred) under the July 1, 1983 Amax Inc. Retirement Plan for
Salaried Employees or any other retirement plan of the Company or
Subsidiary, or
(b) regardless of eligibility for a pension,
termination of employment at any time on or after the date which would
be a Participant's normal retirement date if he were a member of the
July 1, 1983 Amax Inc. Retirement Plan for Salaried Employees.
1.29 "Rollover Contribution" shall mean the
---------------------
contribution described in Section 3.03.
1.30 "Section 401(k) Contribution" shall mean a
---------------------------
contribution to the Plan made on behalf of a Participant which he
elects, as provided herein, to treat as a contribution made under a
cash or deferred arrangement pursuant to section 401(k) of the Code.
1.31 "Section 415 Compensation" shall mean a
------------------------
Participant's earned income, wages, salaries and fees for professional
services and other amounts received for professional services actually
rendered in the course of employment with an employer maintaining a
plan (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses) and excluding the
following:
(a) Employer contributions to a plan of deferred
compensation which are not included in the employee's gross income for
the taxable year in which contributed or employer contributions under
a simplified employee pension plan to the extent such contributions
are deductible by the employee, or any distributions from a plan of
deferred compensation;
(b) Amounts realized from the exercise of a
nonqualified stock option, or when restricted stock (or property) held
by the employee either becomes freely transferrable or is no longer
subject to a substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
10<PAGE>
(d) Other amounts which received special tax benefits,
or contributions made by the employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity described in
section 403(b) of the Code (whether or not the amounts are actually
excludable from gross income of the Employee).
1.32 "Service" shall mean service rendered by an
-------
employee to the Company or to a Related Company, provided, however,
that service rendered by an Eligible Employee prior to January 1, 1988
during a period in which he declined to make contributions under the
Plan and in which there is no balance in his Account under the Plan
shall be disregarded for vesting purposes.
1.33 "Subsidiary" shall mean a corporation the majority
----------
of whose outstanding stock is owned by the Company.
1.34 "Termination of Employment" shall mean a
-------------------------
termination of service other than by reason of transfer to other
employment with the Company or a Subsidiary. The employment of a
Participant who is on an approved leave of absence in excess of 2
years or who is on layoff in excess of 1 year shall be considered as
terminated for all purposes of the Plan. The employment of a
Participant who is in the Armed Forces of the United States shall be
considered as terminated if be does not return to active employment
within 90 days after his earliest eligibility for discharge or release
therefrom.
1.35 "Total and Permanent Disability" shall mean
------------------------------
disablement by injury or disease, which results in total
incapacitation, mental or physical, and which is likely to be
permanent, as determined by a licensed physician. A Participant who
has been placed on a total and permanent disability allowance under
any retirement or insurance plan of the Company or any Subsidiary
shall be deemed to be totally and permanently disabled under the Plan.
1.36 "Trustee" shall mean the Trustee provided for in
-------
Article XII.
1.37 "Valuation Date" shall mean the day the investments
--------------
of the Plan are valued. A Valuation Date shall occur on each business
day on which the Plan's recordkeeper and the New York Stock Exchange
are open for business.
1.38 "Voluntary Contributions" shall mean the
-----------------------
contributions as defined in Section 2.07.
1.39 "Year of Service" shall mean each year,
---------------
commencing on an employee's employment date and anniversaries
11<PAGE>
thereof, in which an employee has 1,000 or more Hours of Service. All
prior Years of Service shall be counted in determining an employee's
eligibility to participate in the Plan, without regard to the
occurrence of any Breaks in Service.
12<PAGE>
ARTICLE II
PARTICIPATION ELIGIBLE FOR MATCHING CONTRIBUTIONS
-------------------------------------------------
2.01 Eligibility.
-----------
(a) Any employee who was a Participant on November 1,
1986 shall continue to be a Participant.
(b) Any other employee may become a Participant on his
Eligibility Date or the first day of any calendar month following his
Eligibility Date by filing with the Committee or its secretary not
later than 10 days prior to such date a written application on a form
provided by the Committee. In the application the employee shall:
(1) agree to accept all of the terms and
conditions of the Plan,
(2) authorize his Employer or Employers to deduct
an amount as provided in either Section 2.02 or 2.03 from his
Compensation,
(3) elect pursuant to Section 5.02 the investment
funds in which the contributions made pursuant to this Article will be
invested, and
(4) designate a beneficiary or beneficiaries to
receive any payment or distribution due upon his death.
(c) Notwithstanding the above, an employee whose
participation in the Plan has terminated shall again become a
Participant in the Plan immediately upon his reemployment as an
Eligible Employee by filing with his Employer prior to or concurrent
with such date a written application in a form described in the
immediately preceding paragraph.
2.02 Election by Participant.
-----------------------
(a) A Participant may, in the election filed pursuant
to Section 2.01 hereof, authorize his Employer or Employers to deduct
up to 6% from his Compensation as his contribution to the Plan, which
contribution shall be matched by the Company pursuant to Section 4.01
of the Plan.
(b) Pursuant to Section 3.01, a Participant may also
make an unmatched contribution of up to 10% of his Compensation.
13<PAGE>
(c) Notwithstanding Subsections (a) and (b), the total
of matched and unmatched after-tax and 401(k) Contributions may not
exceed 16% of Compensation.
2.03 Types of Contributions That Can Be Elected. At the
------------------------------------------
Participant's election, such contributions described in Section 2.02
may be made either on an after-tax basis or on a tax-deferred basis
under a salary reduction agreement. Elections must be made according
to the procedure prescribed by and on the form provided by and filed
with the Committee. Elections to make Participant contributions may
be prospective only. Participant contributions will be paid into the
Trust Funds by the Company at least monthly.
2.04 Change of Election. A Participant may change the
------------------
percentage of his Compensation which will be contributed to the Plan
by him or on his behalf as a matched 401(k) Contribution, an unmatched
401(k) contribution, a supplemental matched after-tax contribution or
as a supplemental unmatched contribution by filing with his Employer a
written request on a form provided for such purposes. Such change
shall be effective on the first pay period of the next month following
at least 15 days prior written notice of the change from the
Participant.
2.05 Cessation of Participation. A Participant who
--------------------------
shall cease to be an Eligible Employee shall cease to be a contributor
to the Plan but, until his Termination of Employment, shall continue
to be a Participant for all other purposes of the Plan so long as
there is a balance in his Account. A person shall cease to be a
Participant upon the Valuation Date coincident with or next following
the date of his Termination of Employment or when there is no balance
in his Account.
2.06 Section 401(k) Contributions. It is the intent of
----------------------------
the Company that all Section 401(k) Contributions made pursuant to
Sections 2.03 and 3.01 shall satisfy all the requirements of
section 401(k) of the Code. Compliance with section 401(k) of the
Code shall be demonstrated by showing that the Plan satisfies one of
the Actual Deferral Percentage Tests in accordance with section 401(k)
of the Code and the regulations thereunder for each Plan Year.
(a) The determination of who is a "Highly
------
Compensated Employee" will be made in accordance with section
- --------------------
414(q) of the Code and the regulations thereunder.
(b) The Committee may estimate at such time or times
as the Committee in its discretion shall determine, the extent, if
any, to which Section 401(k) Contribution treatment under
section 401(k) of the Code may not be available to any Participant or
class of Participants with respect to
14<PAGE>
contributions elected under Sections 2.03 and 3.01 for a Plan Year.
In accordance with any such estimate, the Committee may modify the
limits on contributions which may be elected under Sections 2.03 and
3.01 for Section 401(k) Contributions for any Participant or class of
Participants. For purposes of the Actual Deferral Percentage Tests
under this Section 2.06, the Committee, in its sole and absolute
discretion, may treat all or any part of any Company contributions or
allocations under Article IV as Section 401(k) Contributions to the
extent permitted under section 401(k) of the Code and the regulations
thereunder. If, pursuant to the estimates by the Committee described
above or otherwise, the Committee in its sole and absolute discretion
shall determine that, after application, if at all, of the previous
sentence, neither of the Actual Deferral Percentage Tests described in
Paragraph (a) of this Section 2.06 will be satisfied for any Plan Year
or that a Participant or class of Participants is not eligible for
Section 401(k) Contribution treatment for any or all of the
contributions elected under Sections 2.03 and 3.01, then the Committee
may elect, in its sole and absolute discretion, to pursue any of the
following courses of action or any combination thereof:
(1) Excess Section 401(k) Contributions elected
under Section 3.01 may be redesignated as supplementary voluntary
contributions and accounted for under Section 3.01 to the extent such
redesignated contributions, when considered together with other
supplemental voluntary contributions, would not exceed the limits of
Section 3.01; and excess Section 401(k) Contributions elected under
Section 2.03 may be redesignated as after tax contributions and
accounted for under Section 2.02. Adjustments to withhold any
federal, state or local taxes due on such amounts may be made by the
Company against Compensation yet to be paid to the affected
Participant during that year.
(2) Excess Section 401(k) Contributions elected
under Sections 2.03 and 3.01, and any earnings attributable thereto
through the date of distribution, may be returned to the Employer
employing the Participant, solely for the purpose of enabling that
Employer to withhold any federal, state or local taxes due on such
amounts. Such Employer shall pay all remaining amounts to the
Participant within the 2-1/2 month period following the close of the
Plan Year to which the excess Section 401(k) Contributions relate to
the extent feasible, but in all events no later than 12 months after
the close of such Plan Year.
(3) The Committee may authorize a suspension or
reduction of Section 401(k) Contributions elected under Sections 2.03
and 3.01 in accordance with rules promulgated by the Committee. These
rules may include provisions authorizing
15<PAGE>
the suspension or reduction of Section 401(k) Contributions above a
specified dollar amount or percentage of Compensation.
In addition, the Company, in its discretion, may make a contribution
to the Plan to be allocated by the Committee among the accounts of
Eligible Employees who are not Highly Compensated Employees.
(c) The amount of excess Section 401(k) Contributions
for purposes of Section 2.06(c) shall be determined by the Committee
by reducing the Actual Deferral Percentage (as determined in
accordance with section 401(k)(3) of the Code and the regulations
thereunder) of the Highly Compensated Employee(s) with the highest
Actual Deferral Percentage to the extent required to enable the Plan
to satisfy one of the Actual Deferral Percentage Tests or to cause the
Actual Deferral Percentage of such Employee(s) to equal the Actual
Deferral Percentage of the Highly Compensated Employee(s) with the
next-highest Actual Deferral Percentage. The process in the preceding
sentence shall be repeated until the Plan satisfies one of the Actual
Deferral Percentage Tests. The amount of any reduction in an
Employee's Section 401(k) Contributions necessary to reduce such
Employee's Actual Deferral Percentage in accordance with this
Paragraph shall constitute excess Section 401(k) Contributions. The
earnings attributable to excess Section 401(k) Contributions shall be
determined by the Committee in accordance with section 401 of the Code
and the regulations thereunder. The Committee will not be liable to
any Participant (or his Beneficiary, if applicable) for any losses
caused by inaccurately estimating the amount of any Participant's
excess Section 401(k) Contribution and earnings attributable to
Section 401(k) Contributions.
2.07 After-Tax Contributions.
-----------------------
(a) It is the intent of the Company that all after-tax
contributions elected under Section 2.02 (including any Section 401(k)
Contributions recharacterized as after-tax contributions pursuant to
Section 2.06), together with all supplemental voluntary contributions
elected under Section 3.01 (including any Section 401(k) Contributions
recharacterized as supplemental voluntary contributions pursuant to
Section 2.06) (all such after-tax contributions and supplemental
voluntary contributions hereinafter being referred to as "Voluntary
Contributions"), and all Company contributions pursuant to
Section 4.01 (excluding any Company contributions treated as
Section 401(k) Contributions, if any, pursuant to Section 2.06) (all
such Company contributions being hereinafter referred to as "Matching
Contributions"), shall satisfy all requirements of section 401(m) of
the Code. Compliance with section 401(m) of the Code shall be
demonstrated by showing that the Plan satisfies
16<PAGE>
one of the Actual Contribution Percentage Tests in accordance with
section 401(m) of the Code and the regulations thereunder for each
Plan Year.
(b) The Committee may estimate at such time or times
as the Committee in its discretion shall determine, the extent, if
any, to which Voluntary Contributions may not be made on behalf of any
Participant or class of Participants by reason of this Section 2.07.
In accordance with any such estimate, the Committee may modify the
limits on Voluntary Contributions which may be elected under Sections
2.02 and 3.01 for any Participant or class of Participants. For
purposes of the Actual Contribution Percentage Tests under this
Section 2.07, the Committee, in its sole discretion, may treat all or
any part of Section 401(k) Contributions as Matching Contributions to
the extent permitted under section 401(k) of the Code and the
regulations thereunder. Except as otherwise permitted or required by
the Code or the regulations thereunder, any such Section 401(k)
Contributions that are treated as Matching Contributions shall not be
treated as Section 401(k) Contributions for purposes of Section 2.06.
In addition, any Matching Contributions treated as Section 401(k)
Contributions under Section 2.06 shall not be treated as Matching
Contributions for purposes of this Section 2.07, except as otherwise
permitted or required by the Code or the regulations thereunder. If,
pursuant to the estimates by the Committee described above or
otherwise, the Committee in its sole and absolute discretion shall
determine that, after application, if at all, of the previous three
sentences, neither of the Actual Contribution Percentage Tests
described in Paragraph (a) of this Section 2.07 will be satisfied for
any Plan Year or that Voluntary Contributions may not be made on
behalf of any Participant or class of Participants by reason of this
Section 2.07, then the excess Voluntary Contributions for such Plan
Year elected under Section 3.01 and, if necessary, the excess
Voluntary Contributions, for such Plan Year elected under
Section 2.02, together with the earnings attributable to such excess
Voluntary Contributions through the date of distribution, shall be
distributed to the Highly Compensated Employee(s) on whose behalf such
contributions were made. The amount of excess Voluntary Contributions
for purposes of this Paragraph shall be determined by the Committee by
reducing the Actual Contribution Percentage (determined in accordance
with section 401(m) of the Code and the regulations thereunder) of the
Highly Compensated Employee(s) with the highest Actual Contribution
Percentage to the extent required to enable the Plan to satisfy one of
the Actual Contribution Percentage Tests or to cause the Actual
Contribution Percentage of such Employee(s) to equal the Actual
Contribution Percentage of the Highly Compensated Employee(s) with the
next-highest Actual Contribution Percentage. The process in the
preceding sentence shall be repeated until the Plan satisfies one of
the Actual Contribution Percentage Tests.
17<PAGE>
The amount of any reduction in an Employee's Voluntary Contributions
necessary to reduce such Employee's Actual Contribution Percentage
shall constitute excess Voluntary Contributions. The earnings
attributable to excess Voluntary Contributions shall be determined by
the Committee in accordance with section 401(k) of the Code and the
regulations thereunder. The Committee will not be liable to any
Participant (or his Beneficiary, if applicable) for any losses caused
by inaccurately estimating the amount of any Participant's excess
Voluntary Contributions and earnings attributable to Voluntary
Contributions.
(c) The Actual Deferral Percentage Tests under
Section 2.06 and the Actual Contribution Percentage Tests under this
Section 2.07 shall be met in accordance with the prohibition against
the multiple use of the alternative limitation under section 401(m)(9)
of the Code and the regulations thereunder.
(d) In the case of a Highly Compensated Employee whose
Actual Deferral Percentage or Actual Contribution Percentage is
determined under the family aggregation rules of section 414(q)(6) of
the Code and regulations under sections 401(k) and (m) of the Code,
the determination of the amount of excess Section 401(k) Contributions
and excess Voluntary Contributions shall be determined in accordance
with the terms of such regulations.
18<PAGE>
ARTICLE III
CONTRIBUTIONS BY PARTICIPANTS
-----------------------------
3.01 Participant Contributions. A Participant may elect
-------------------------
to contribute to the Plan as provided in Article II. In addition, any
Participant who authorizes a deduction in the amount of 6% of his
Compensation may make supplemental unmatched voluntary contributions
which shall be 401(k) or after-tax Contributions in 1% increments up
to an additional 10% of his Compensation; such supplemental unmatched
voluntary contributions may be changed in accordance with Section
2.04. The sum of Participant contributions may not exceed 16% of
Compensation.
3.02 Crediting of Contributions. Such payroll deductions
--------------------------
for any pay period will be paid to the Trustee as soon as reasonably
practicable after the end of each calendar month and credited to the
respective accounts of the Participants from whose Compensation such
deductions were made.
3.03 Rollover Contributions.
----------------------
(a) A Participant, with the consent of the Committee,
may make a rollover contribution to the Plan by paying the amount
thereof to the Trustee.
For purposes of this Section 3.03, a rollover
contribution means (i) all or any portion of the amount distributed to
the Participant from a trust under a stock bonus, pension or profit-
sharing plan described in section 401(a) of the Code, or a qualified
annuity plan described in section 403(a) of the Code, provided such
amount is a qualifying rollover distribution within the meaning of
section 402(c) of the Code, or (ii) the entire amount distributed to
the Participant from an individual retirement account or individual
retirement annuity described in sections 408(a) and (b) of the Code,
provided such amount is a rollover contribution within the meaning of
section 408(d)(3) of the Code.
(b) A Participant who, at the time he commences
participation in the Plan, has accrued benefits under a defined
contribution plan that is qualified under section 401(a) of the Code
may, with the consent of the Committee and after all necessary
governmental approvals have been obtained, have the balance credited
to his Account under any such plan transferred to the Plan. Such
transfer shall be made, and the amounts transferred shall be invested,
in accordance with procedures established by the Committee. The
Participant's vested interest in the amounts transferred shall be
determined in accordance with Article IX by including in the
Participant's Years of Service all
19<PAGE>
periods of service taken into account in determining his vested
interest under the plan from which the amount was transferred;
provided, however, in no event shall his vested interest in the
amounts transferred be less than it was under the plan from which it
was transferred at the time of the transfer.
(c) Once allocated, amounts transferred shall be
subject to all rules regarding the Funds in which such amounts have
been placed.
20<PAGE>
ARTICLE IV
COMPANY CONTRIBUTIONS
---------------------
4.01 Company Contributions. The Company shall, as soon
---------------------
as reasonably practicable after the end of each calendar month,
contribute to the Plan for the Account of each Participant an amount
equal to 50% pursuant to Article II of such Participant's
contributions during such month. Notwithstanding the foregoing, the
Company shall not match any supplemental voluntary contributions made
by a Participant. Employer contributions for any month shall be made
only out of current or accumulated earnings and profits of the
Employer in such month as determined for dividend purposes as defined
in section 316 of the Code or, if greater, as determined under
generally accepted accounting principles and practices; provided,
however, that Employer contributions pursuant to this Article IV for
any calendar quarter shall in any event only be made to the extent the
Company and its subsidiaries have consolidated current or accumulated
earnings for such calendar quarter as determined under generally
accepted accounting principles. Contributions by the Company may be
made in cash or Common Stock of the Company (valued for this purpose
at the closing price of such stock on the Composite Tape on the
trading day preceding the date of contribution) or any combination
thereof, as the Company in its sole discretion shall determine.
4.02 Maximum Contributions. Notwithstanding anything
---------------------
else contained herein, the Annual Additions, to all the Funds of a
Participant shall not exceed the lesser of thirty thousand dollars
($30,000) (or such other dollar amount which results from cost of
living adjustments under section 415(d) of the Code) or twenty-five
percent (25%) of the Participant's Section 415 compensation from the
Company or Related Companies during the Plan Year (including
Section 415 Compensation while not a Participant).
In the event that Annual Additions to all the Funds of a
Participant would exceed the aforesaid limitations, they shall be
reduced in the following priority: (1) return of Participant
contributions in excess of six percent (6%) of such Section 415
compensation to the Participant; (2) reduction of Employer
contributions. Solely for purposes of this Section 4.02 the term
Compensation shall not include any amount contributed on behalf of a
Participant under Section 2.03.
If the Company or any Related Company contributes amounts,
on behalf of Employees covered by this Plan, to other "defined
contribution plans" as defined in section 414(i) of the Code, the
limitation on Annual Additions provided in this
21<PAGE>
Section 4.02 shall be applied to Annual Additions in the aggregate to
this Plan and such other plans. Reduction of Annual Additions, where
required, shall be accomplished by first reducing contributions or
allocating excess in the manner and priority set out above with
respect to this Plan and then by reductions under such other plans
pursuant to the directions of the named fiduciary for administration
of such other plans or under priorities, if any, established by the
terms of such other plans. In any case where a Participant under this
Plan is also a Participant in any "defined benefit plan" as defined in
section 414(j) of the Code, maintained by the Company or any Related
Company, the sum of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction shall not, subject to the restrictions and
exceptions contained in section 2004 of ERISA, exceed 1.0. Reduction
of benefits and/or contributions to all plans, where required, shall
be accomplished by first reducing the Participant's benefits under any
defined benefit plan or plan (in such priority as shall be determined
by the Committee), then by reducing contributions or allocating excess
in the manner and priority set out above with respect to this Plan,
then by reducing contributions or allocating excess in the manner and
priority set out above with respect to other defined contribution
plans, if any; provided, however, that reductions necessary may be
made in a different manner and priority pursuant to the agreement of
the Committee and the administrators of all other plans covering such
Participant.
For the orderly administration of the Plan, the Committee
may limit contributions to be made for any Plan Year by or on behalf
of Participants so that amounts contributed do not exceed limitations
contained in this Section 4.02.
22<PAGE>
ARTICLE V
INVESTMENT OF FUNDS
-------------------
5.01 Investment of Contributions. The Committee shall
---------------------------
be solely responsible for the handling and investment of all
contributions made to the Plan and of income received thereon,
subject, however, to the right of the Investment Manager(s) appointed
by the Committee pursuant to Section 14.10 to direct the Committee as
to the investment of contributions and income attributable to the
Funds (or any portion of such Funds which may be designated by the
Committee) pursuant to Section 13.12 to appoint one or more insurance
companies from which guaranteed investment contracts will be
purchased.
5.02 Participant Contributions.
-------------------------
(a) Except as provided in Section 10.07, the
contributions of all Participants, including income thereon, shall be
held by the Trustee in such investment funds designated by the Savings
Plan Administrator from time to time. At the election of each
Participant, such contributions may be invested to the extent of one
(1) percent or multiples thereof in any available fund or in a
combination of the available funds.
(b) Funds available may include investments in the
following investment options:
Cyprus Amax Stable Value Fund
T. Rowe Price Spectrum Income Fund
T. Rowe Price Equity Index Fund
T. Rowe Price Capital Appreciation Fund
T. Rowe Price International Stock Fund
T. Rowe Price New America Growth Fund
Cyprus Amax Minerals Company Common Stock
(c) The Trustee may keep such amounts of cash as it,
in its sole discretion, shall deem necessary or advisable as part of
the Funds, all within the limitations specified in the Trust
Agreement.
(d) Dividends, interest, and other distributions
received on the assets held by the Trustee with respect to each of the
above Funds shall be reinvested in the respective Fund.
(e) In the absence of effective investment directions,
the Committee will direct the Trustee to invest any cash in the T.
Rowe Price Prime Reserve Fund.
23<PAGE>
5.03 Company Contributions. All contributions of the
---------------------
Company to the Plan, including income thereon, shall be held by the
Trustee and invested exclusively in Common Stock of the Company. The
amounts and timing of purchases of Common Stock for investment shall
be made only as the Trustee, in its sole discretion, shall determine.
The Trustee shall be authorized to invest the funds received as
contributions of the Company in short-term money market instruments
during the period between the date such contributions are received and
the date the Trustee uses such contributions to purchase Common Stock
of the Company.
5.04 Participant Investment Direction. As of each
--------------------------------
Valuation Date, a Participant employed by the Employer may designate,
in a manner determined by the Committee for this purpose, the
proportion of his Account invested in the available funds (in integral
multiples of one percent of such balances). A designation under this
Section 5.04 shall take effect on the Valuation Date in which the new
designation is made and the dollar amount transferred in each case
shall be determined as of such Valuation Date.
5.05 Participant Risk. Each Participant assumes all
----------------
risk connected with any decrease in the market price of any securities
in the respective Funds, and such Funds shall be the sole source of
payments and distributions to be made under the Plan.
5.06 Fees. Brokerage fees, commissions, stock transfer
----
and other taxes and other charges and expenses incident to the
purchase and sale of securities for each Fund, and distributions
therefrom, shall be paid from such Fund. All other proper expenses
and charges incurred in the administration of the Plan, including the
Trustee's fees and expenses and those of its counsel, shall be paid by
the Company.
5.07 Voting of Company Stock.
-----------------------
(a) Notwithstanding any other provision of the Plan,
each Participant (or, in the event of such Participant's death, his or
her beneficiary) shall have the right to instruct the Trustee, as more
fully provided below, with respect to the voting of the full shares of
Common Stock of the Company which his or her interest in Company
Contributions Account represents or to direct the Trustee as to how to
respond to a tender or exchange offer with respect to shares of Common
Stock of the Company which his or her interest in the Company
Contributions Account represents. Individual instructions received
from Participants (or their beneficiaries) by the Trustee (whether
regarding voting, tender or exchange) shall be held in the strictest
confidence and shall not be divulged or released to any person,
including officers or employees of the Company.
24<PAGE>
(b) Before each annual or special meeting of the
shareholders of the Company, the Committee shall cause each
Participant (or beneficiary) to be provided with a copy of the proxy
solicitation material relating to his or her interest in the shares of
Common Stock of the Company in the Company Contributions Account,
together with a form containing confidential instructions to the
Trustee on how to vote the full shares of Common Stock which such
interest represents. Upon receipt of such instructions on or prior to
the date set forth in the instruction form, the Trustee shall vote
such shares of Common Stock of the Company as instructed. Any Common
Stock of the Company in the Company Contributions Account for which
voting instructions have not been timely received and any fractional
interests of shares of Common Stock in the Company Contributions
Account shall be voted by the Trustee in the same manner and in the
same proportion as the shares for which the Trustee has received
timely instructions from Participants (or beneficiaries).
(c) Each Participant (or beneficiary) shall have the
right to direct the Trustee in writing as to how to respond to a
tender or exchange offer made with respect to shares of Common Stock
of the Company (including any fractional shares) representing his or
her interest in the Company Contributions Account. Any Common Stock
in the Company Contributions Account for which such a direction has
not been timely received shall not be tendered or exchanged. Each
Participant (or beneficiary) shall have the right, at any time prior
to the expiration of withdrawal rights with respect to such tender or
exchange offer, to direct the Trustee to withdraw from tender or
exchange any Common Stock in the Company Contributions Account which
such Participant (or beneficiary) previously directed to be tendered
or exchanged.
(d) In the event of a tender or exchange offer for
shares of Common Stock of the Company in the Company Contributions
Account, the Company and the Committee shall timely communicate to all
Participants (or beneficiaries) the provisions of the Plan relating to
the tender or exchange of such shares and shall timely distribute to
all such Participants (or beneficiaries) all communications directed
generally to the owners of the shares subject to the tender or
exchange offer.
25<PAGE>
ARTICLE VI
VALUATION OF TRUST
------------------
6.01 Valuation of the Trust. The value of the Funds
----------------------
shall be determined separately by the Trustee as of each Valuation
Date. In making such determination the Trustee shall take into
account the Current Market Value of the securities held, accrued
income and uninvested cash and, where applicable, the appropriate
value of any investment contracts.
26<PAGE>
ARTICLE VII
METHOD OF RECORDING PARTICIPANTS' INTERESTS
-------------------------------------------
7.01 Participants' Accounts.
----------------------
(a) An individual account shall be maintained for each
Participant.
(b) Each Participant's Account reflecting his interest
in the Plan shall be divided into subaccounts corresponding to the
investment options selected by the Participant, and each subaccount
shall be further subdivided as to
(1) section 401(k) tax-deferred matched
contributions and earnings thereon,
(2) section 401(k) tax-deferred unmatched
contributions and earnings thereon,
(3) basic matched after-tax contributions and
earnings thereon, and
(4) supplemental unmatched after-tax
contributions and earnings thereon.
(c) Each month each Participant's subaccounts will be
credited with the contributions made by or on behalf of such
Participant for such month pursuant to Articles III and IV which the
Participant has elected pursuant to Section 5.02. Each Participant's
Company Contributions Account will be credited with the amount
contributed on behalf of that Participant by the Company pursuant to
Section 4.01.
(d) Notwithstanding the foregoing, if a loan is made
to a Participant under Section 11.08, his Account shall be further
subdivided and adjusted as provided in that Section.
7.02 Adjustment to Account. The value of each Fund
---------------------
in a Participant's Account will be adjusted as of each Valuation Date.
27<PAGE>
ARTICLE VIII
VESTING
-------
8.01 Vesting.
-------
(a) The interest of a Participant in his Company
Contributions Account subaccount shall become fully vested upon the
earliest to occur of:
(1) such Participant's death,
(2) such Participant's attainment of age 65,
(3) such Participant's Retirement,
(4) such Participant's Total and Permanent
Disability,
(5) the Permanent Layoff of such Participant,
(6) termination of the Plan,
(7) permanent discontinuance of contributions by
the Company to the Plan, or
(8) a Change in Control.
(b) The interest of a Participant in each of the Funds
of the Plan other than Company Contributions Account shall at all
times be nonforfeitable.
(c) A Participant shall have at any time a vested
interest in his Company Contributions Account subaccount, not
theretofore forfeited, only in accordance with the following schedule:
Years of Service Vested Percentage
---------------- -----------------
Less than 2 0%
2 25%
3 50%
4 75%
5 or more 100%
8.02 Years of Service for Vesting. All prior Years of
----------------------------
Service shall be counted for vesting purposes, without regard to the
occurrence of any Breaks in Service.
28<PAGE>
ARTICLE IX
DISTRIBUTION UPON TERMINATION OF EMPLOYMENT
-------------------------------------------
9.01 Distributions.
-------------
(a) Upon a Participant's Termination of Employment,
his Account shall be distributed on the Distribution Date coincident
with or following such event, unless an election to defer distribution
or a direction to transfer is filed pursuant to this Section 9.01.
The Distribution Date for purposes of this Article IX shall
be the Valuation Date or Dates within the applicable month designated
by the Committee; a Participant's Account shall be valued as of the
Valuation Date which coincides with his Distribution Date.
Unless the Participant elects otherwise, distribution of the
Participant's Accounts shall be made in a cash lump sum; provided,
however, a Participant may elect to receive the vested interest in his
Company Account in shares of Common Stock of the Company, with any
remainder after computing the value of the whole number of shares
being paid in cash.
Notwithstanding the foregoing, a Participant may elect to
receive his Accounts in payments of approximately equal quarterly or
annual installments over a period, designated by the Participant, from
two to ten years (in whole year increments), provided that the period
selected by a Participant does not exceed the life expectancy of the
last survivor of the Participant and his beneficiary.
In the event that the Participant dies before all
installments have been paid, the remaining balance in his Accounts
shall be paid in an immediate cash lump sum to his beneficiary.
Notwithstanding the foregoing provisions of Section 9.01, if
a Participant terminates employment prior to his Normal Retirement
Date and his vested interest under the Plan exceeds $3,500, the
Participant may not receive distribution of such interest until the
later of his Normal Retirement Date or his sixty-second birthday,
unless he shall first consent to such a distribution in writing.
If a Participant's Termination of Employment occurs by
reason of Retirement, such Participant may defer distribution which
would otherwise be required pursuant to Section 10.01 until the
earlier of the last Distribution Date preceding the date he
29<PAGE>
attains age 70 or the date of his death, by filing an election with
the Committee (on a form furnished by the Committee for this purpose)
prior to his Retirement.
An election filed under this Section 9.01 may be revoked by
the Participant at any time by providing written notice to the
Committee. Upon receipt of such revocation notice, the Participant
shall be entitled to and shall receive, as of the Distribution Date
coincident with or next following the date on which such notice is
received, the value of his Accounts in accordance with this
Section 9.01
Upon Termination of Employment, a Participant may designate
the proportion of his Accounts to be transferred to and invested in
the various Funds.
Upon Termination of Employment, a Participant who does not
have an election in effect to defer distribution pursuant to this
Section may, in accordance with such rules as determined by the
Committee, request the Trustee to transfer to the trustee of another
employee benefit plan qualified under section 401(a) of the Code in
cash the amount which would otherwise have been distributed to him in
accordance with this Section 9.01, by filing with the Committee prior
to his Termination of Employment a request to transfer (on a form
furnished by the Committee for this purpose).
(b) In no event shall the provisions of this Article
operate so as to allow the distribution of a Participant's Account to
begin later than the April 1 following the calendar year in which he
attains age 70-1/2, provided that such commencement in active service
shall not be required with respect to a Participant (i) who does not
own more than five percent of the outstanding stock of the Employer
(or stock possessing more than five percent of the total combined
voting power of all stock of the Employer), and (ii) who attained age
70-1/2 prior to January 1, 1988.
In the event a Participant is required to begin receiving
payments while in service under the provisions of the preceding
paragraph, the Participant may elect to receive payments while in
service in accordance with option (i) or (ii), as follows:
(i) A Participant may receive one lump sum
payment on or before the Participant's required beginning date equal
to his entire Account balance and annual lump sum payments thereafter
of amounts accrued during each calendar year; or
30<PAGE>
(ii) a Participant may receive annual payments of
the minimum amount necessary to satisfy the minimum distribution
requirements of section 401(a)(9) of the Code.
Such minimum amount will be determined on the
basis of the joint life expectancy of the Participant and his
beneficiary. Such life expectancy will be recalculated once each
year; however, the life expectancy of the beneficiary will not be
recalculated if the beneficiary is not the Participant's spouse.
The amount of the withdrawal shall be allocated
between the investment funds in proportion to the value of the
Participant's Accounts as of the date of each withdrawal.
An election under this Section 9.01 shall be made by a
Participant by giving written notice to the Committee within the 90-
day period prior to his required beginning date. The commencement of
payments under this Section 9.01 shall not constitute an Annuity
Starting Date for purposes of sections 72, 401(a)(11) and 417 of the
Code. Upon the Participant' subsequent Termination of Employment,
payment of the Participant's Accounts shall be made in accordance with
the provisions of this Section 9.01. In the event a Participant fails
to make an election under this Paragraph (b), payment shall be made in
accordance with Paragraph (a) above.
(c) Notwithstanding any provision of the Plan to the
contrary, a lump sum payment of his vested interest shall be made if
the value of his vested interest as of his termination of employment
amounts to $3,500 or less. The lump sum payment shall automatically
be made as soon as administratively practicable following the
Participant's Termination of Employment.
(d) Notwithstanding any other provision of this
Article IX, all distributions from this Plan shall conform to the
regulations issued under section 401(a)(9) of the Code, including the
incidental death benefit provisions of section 401(a)(9)(G) of the
Code. Further, such regulations shall override any Plan provision
that is inconsistent with section 401(a)(9) of the Code.
9.02 Distribution to Vested Terminated Participant.
---------------------------------------------
If a Participant's Termination of Employment occurs for a reason other
than death, Retirement, Permanent Disability, or Permanent Layoff, and
the Participant is either nonvested or receives distribution of his
Company Contributions Account, such portion of his Company
Contributions Account subaccount which is not vested shall be
forfeited and used to reduce the contributions otherwise required by
the Plan to be made by the Company to the Trustee. If a former
Participant who has suffered a forfeiture on account of his
termination of participation in accordance with
31<PAGE>
the preceding sentence is reemployed as an Eligible Employee by the
Company before incurring five consecutive One-Year Breaks in Service
and repays to the Plan all money distributed from his Company
Contributions Account subaccount, if any, prior to the conclusion of
five consecutive One-Year Breaks in Service following such Break in
Service, any amounts so forfeited (unadjusted for any increase or
decrease in the value of Trust assets subsequent to the Valuation Date
on which the forfeiture occurred) shall be reinstated to the
Participant's Company Contributions Account within a reasonable time
after such repayment. Such reinstatement shall be made from
forfeitures of Participants occurring during the Plan Year in which
such reinstatement occurs; provided, however, if such forfeitures are
not sufficient to provide such reinstatement, the reinstatement shall
be made through additional Employer Contributions. In the case where
a Participant incurs a forfeiture and again becomes a Participant in
the Plan, the Plan shall account separately for the Participant's pre-
break interest and post-break interest.
Notwithstanding the preceding paragraph, in the case of a
Participant who incurs a Termination of Employment prior to January 1,
1985, the words "One-Year Break in Service" shall be substituted for
the words "five consecutive One-Year Breaks in Service" in the
preceding paragraph if such substitution results in a One-Year Break
in Service having occurred before January 1, 1985.
9.03 Direct Rollovers. This Section applies to
----------------
distributions made on or after January 1, 1993. Notwithstanding any
provision of the Plan to the contrary that would otherwise limit a
distributee's election under this Section, a distributee may elect, at
the time and in the manner prescribed by the Committee, to have any
portion of an eligible rollover distribution paid directly by the Plan
to an eligible retirement plan specified by the distributee in a
direct rollover. The following definitions apply to the terms used in
this Section:
(a) "Eligible rollover distribution" shall mean
------------------------------
any distribution of all or any portion of the balance to the credit of
the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint lives
(or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution is required
under section 401(a)(9) of the Code, and the portion of any
distribution that is not includable in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities);
32<PAGE>
(b) "Eligible retirement plan" shall mean an
------------------------
individual retirement account described in section 408(a) of the Code,
an individual retirement annuity described in section 408(b) of the
Code, an annuity plan described in section 403(a) of the Code, or a
qualified trust described in section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However, in the
case of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity;
(c) "Distributee" shall mean an employee or former
-----------
employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse or former spouse
who is the alternate payee under a qualified domestic relations order
as defined in section 414(p) of the Code, are distributees with regard
to the interest of the spouse or former spouse; and
(d) "Direct rollover" shall mean a payment by the
---------------
Plan to the eligible retirement plan specified by the distributee.
33<PAGE>
ARTICLE X
WITHDRAWALS AND LOANS
---------------------
10.01 Withdrawals of March 31, 1994 Accounts Before
---------------------------------------------
Age 59-1/2. With respect to contributions and earnings thereon
- ----------
accrued on or before March 31, 1994 only, a Participant who shall not
have attained age 59-1/2 and has not incurred a "Hardship" (as defined
below) may make withdrawals in accordance with the following
paragraphs:
(a) A Participant may, subject to Section 10.04, elect
to withdraw all or part of his contributions pursuant to Section 2.02
and supplemental voluntary contributions made before January 1, 1987,
not to exceed his non-taxable basis, excluding earnings thereon.
(b) A Participant who has withdrawn the amounts
described in Paragraph (a) above may, subject to Section 10.04, elect
to withdraw all or part of his contributions pursuant to Section 2.02
and supplemental voluntary contributions made on or after January 1,
1987, with earnings thereon. Notwithstanding the preceding sentence,
a Participant may not withdraw his contributions pursuant to
Section 2.02, if any, made within the 24-month period preceding the
date of withdrawal.
(c) A Participant who has withdrawn the amounts
described in Paragraphs (a) and (b) above may, subject to
Section 10.04, elect to withdraw the remaining amounts attributable to
any contribution pursuant to Section 2.02 and supplemental voluntary
contributions made before January 1, 1987, except for contributions
pursuant to Section 2.02, if any, made within the 24-month period
preceding the date of withdrawal.
(d) A Participant who has withdrawn amounts available
for withdrawal under Paragraphs (a), (b) and (c) may, subject to
Section 10.04, elect to withdraw all or part of any rollover
contributions pursuant to Section 3.03(a)1 with earnings thereon.
(e) A Participant who has completed five or more Years
of Service and has withdrawn the total amount available for withdrawal
under Paragraphs (a), (b), (c) and (d) may elect to withdraw all or
part of his company account.
(f) Notwithstanding the provisions of Paragraph (e)
above, a Participant who has withdrawn the total amount available for
withdrawal under Paragraphs (a), (b), (c), (d) and (e) above may elect
to withdraw his contributions pursuant to Section 2.02 made within the
24-month period preceding the date
34<PAGE>
of withdrawal. However, a Participant who makes a withdrawal pursuant
to this Paragraph (f) will not be eligible for Company contributions
pursuant to Article IX for a period of three months following the
month of the most recent withdrawal.
10.02 Inservice Withdrawals of March 31, 1994 Account
-----------------------------------------------
After Age 59-1/2. With respect to contributions and earnings thereon
- ----------------
accrued on or before March 31, 1994 only, a Participant who shall have
attained age 59-1/2 as of the effective date of any withdrawal
pursuant to this Section may, subject to Section 10.04, elect to
withdraw in the following order all or part of (i) the contributions
pursuant to Section 2.02 and supplemental voluntary contributions made
before January 1, 1987, not to exceed his non-taxable basis, (ii) the
portion of his contributions pursuant to Section 2.02 and supplemental
voluntary contributions made on or after January 1, 1987, with
earnings thereon, (iii) the remainder of his contributions pursuant to
Section 2.02 and supplemental voluntary contributions, (iv) his
rollover contributions pursuant to Section 3.03 with earnings thereon,
(v) the vested portion of his company account, and then (vi) his
Section 401(k) Contributions, with earnings thereon.
10.03 Inservice Withdrawals After April 1, 1994.
-----------------------------------------
Effective April 1, 1994, the following in-service withdrawals will be
available to Participants with respect to contributions made after
that date.
(a) A Participant while an Eligible Employee may
withdraw all or any specified percentage or dollar amount of the
current market value of his matched after-tax contributions and his
unmatched after-tax contributions not more than twice in a calendar
year.
(b) A Participant while employed as an Eligible
Employee may withdraw all or any specified percentage or dollar amount
of the current market value of his rollover contributions pursuant to
Section 3.03(a), with earnings thereon.
(c) Not more than once in a calendar year, a
Participant who is actively employed may withdraw an amount which is
the difference between (A) the current value of his Company
Contributions Account and (B) the aggregate amount of all
contributions beginning with the contributions made after March 31,
1994 to the Company Contributions Account made or allocated during the
24 calendar months preceding the quarter and prior to the withdrawal,
determined on the basis of cost.
10.04 Hardship Withdrawals After April 1, 1994. With
----------------------------------------
respect to "Hardship" withdrawals prior to April 1, 1994, a
Participant may make Hardship withdrawals in accordance with the
following paragraphs:
35<PAGE>
(a) A Participant may elect to withdraw in the
following order all or part of
(1) the contributions pursuant to Section 2.02
and supplemental voluntary contributions made before January 1, 1987,
not to exceed his non-taxable basis,
(2) the portion of his contributions pursuant to
Section 2.02 and supplemental voluntary contributions made on or after
January 1, 1987, with earnings thereon,
(3) the remainder of his contributions pursuant
to Section 2.02 and supplemental voluntary contributions, with
earnings thereon,
(4) his rollover contributions pursuant to
Section 3.03, with earnings thereon,
(5) the vested portion of his company account and
then (b) his Section 401(k) Contributions (including any earnings
credited to his Account prior to January 1, 1989),
provided that he furnishes proof of "Hardship" satisfactory to the
Employer in accordance with the provisions of Paragraphs (b) and (c)
below.
(b) As a condition for Hardship there must exist with
respect to the Participant an immediate and heavy financial need. The
Committee shall presume the existence of such immediate and heavy
financial need if the requested withdrawal is on account of any of the
following:
(1) medical expenses described in section 213(d)
of the Code previously incurred by the Participant, his spouse or any
of his dependents (as defined in section 152 of the Code) or necessary
for those persons to obtain medical care described in section 213(d)
of the Code;
(2) purchase of a principal residence of the
Participant (excluding mortgage payments);
(3) payment of tuition and related educational
fees for the next 12 months of post-secondary education of the
Participant, his spouse or dependents (as defined in section 152 of
the Code);
(4) payment of amounts necessary to prevent
eviction of the Participant from his principal residence or to avoid
foreclosure on the mortgage of his principal residence; or
36<PAGE>
(5) the inability of the Participant to meet such
other expenses, debts or other obligations recognized by the Internal
Revenue Service as giving rise to immediate and heavy financial need
for purposes of section 401(k) of the Code.
The Committee may determine the existence of immediate and
heavy financial need in situations other than those described in (1)
through (5) above where the Participant demonstrates the withdrawal is
necessary for one of the following reasons:
(1) the payment of expenses relating to the
Participant's principal residence (preservation or renovation);
(2) satisfaction of tax liens or defaulted loans;
(3) payment of unpaid child support or
alimony/maintenance obligations; or
(4) the payment of expenses relating to adoption
or placement of a relative in an extended care facility.
In evaluating the relevant facts and circumstances, the
Committee shall act in a nondiscriminatory fashion and shall treat
uniformly those Participants who are similarly situated. The
Participant shall furnish to the Committee such supporting documents
as the Committee may request in accordance with uniform and
nondiscriminatory rules prescribed by the Committee.
The amount of a distribution necessary to satisfy an
immediate and heavy financial need described in this Paragraph may
include any amounts necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated to result from the
distribution.
(c) As a condition for a Hardship withdrawal, the
Participant must demonstrate that the requested withdrawal is
necessary to satisfy the financial need described in Paragraph (b) as
follows:
(1) If a withdrawal will not be made from a
Participant's Section 401(k) Contributions, the Participant shall
certify to the Committee, on such form as the Committee shall
prescribe, that the financial need cannot be met by the reimbursement
from insurance or by withdrawing all available amounts under the Plan.
(2) If the withdrawal will be made from a
Participant's Section 401(k) Contributions, the Participant must
certify to the Committee, on such form as the Committee may prescribe,
that the financial need cannot reasonably be relieved
37<PAGE>
(A) through reimbursement or compensation by
insurance or otherwise,
(B) by liquidation of the Participant's
assets,
(C) by cessation of Section 401(k)
Contributions and voluntary contributions pursuant to Section 2.02 and
supplemental voluntary contributions, or
(D) by other distributions or nontaxable (at
the time of the loan) loans from the Plan or other plans of the
Employer or by borrowing from commercial sources at a reasonable rate.
For purposes of this Clause, there shall be attributed to the
Participant those assets of the Participant's spouse and children
which are reasonably available to the Participant. The Participant
shall furnish to the Committee such supporting documents, if any, as
the Committee may request in accordance with uniform and
nondiscriminatory rules prescribed by the Committee. If, on the basis
of the Participant's certification and the supporting documents, the
Committee finds it can reasonably rely on the Participant's
certification, then the Committee shall find that the requested
withdrawal is necessary to meet the Participant's financial need.
With respect to Hardship withdrawals on and after April 1,
1994, the following provisions apply: A Participant may withdraw
amounts from his Tax Deferred Savings Accounts while an Employee only
upon a showing that the withdrawal is necessary in light of immediate
and heavy financial need of the Participant. The Participant's entire
Tax Deferred Savings Account as of December 31, 1988 (including
earnings thereon) may be withdrawn; as of January 1, 1989, only the
Participant's salary deferrals may be withdrawn from the Tax Deferred
Savings Account. The amount of financial need may include amounts
necessary to pay federal, state, or local income taxes or penalties
reasonably anticipated to result from the distribution. The
withdrawal cannot exceed the amount required to meet the immediate
financial need created by the Hardship and not reasonably available
from other resources of the Participant. The Plan Administrator's
need to determine if other resources have been exhausted can be satis-
fied by reasonable reliance on the Employee's representation that the
need cannot be relieved through:
(1) reimbursement or compensation by insurance or
any other source;
(2) reasonable liquidation of assets, including
assets of the employee's spouse and minor children, as long as this
would not create a hardship in itself;
38<PAGE>
(3) distributions or nontaxable loans from all
retirement plans, including those sponsored by another employer;
(4) reasonable loans from banks or other
commercial lenders; or
(5) stopping elective deferrals and after-tax
contributions to employer plans.
Objective standards will be utilized to determine whether an
Employee requesting Hardship withdrawal has demonstrated a definite
financial need and exhaustion of all available resources. These
standards will include requiring the Employee to provide one rejection
for a loan from another source and proof of the specific amount of
financial need. Hardship will include expenditures arising from:
(1) unreimbursed medical expense of the Employee, the
Employee's spouse or any of his dependents.
(2) purchase of a principal residence for the
Employee;
(3) payment of tuition for the next 12 months of post-
secondary education for the Employee, his spouse, children or
dependents; and
(4) payments needed to prevent eviction from his
principal residence or foreclosure on his mortgage on his principal
residence.
The Committee will be permitted to rely on the employee's
representations regarding the above as long as the Committee or its
designated agents does not have any actual knowledge or any reason to
know that the employee's representation is false.
10.05 Withdrawal Application. To make a withdrawal, a
----------------------
Participant shall make an application in a manner determined by the
Committee. A withdrawal shall be made as soon as practicable
following the Committee's approval of the Participant's application
for a withdrawal. Not more than two withdrawals may be made in any
12-month period. In no event may a Participant who has deferred
distribution of his subaccounts pursuant to Section 9.01 make a
withdrawal under this Article X.
10.06 Loans Before April 1, 1994. With respect to loans
--------------------------
made before April 1, 1994, the following provisions apply: After
receiving an Eligible Participant's application, the Committee may
direct the Trustee to make a loan or loans to such
39<PAGE>
Eligible Participant. Loan proceeds shall be disbursed within such
period of time following the filing of the application as may be
established by the Committee. Upon acceptance of loan proceeds, the
Eligible Participant shall assign as security for the loan his vested
interest in and to his Account under the Plan but not in excess of 50
percent of such vested interest. All loans shall be subject to the
following provisions:
(a) Loans shall be available to all Eligible
Participants on a reasonably equivalent basis and shall not be made
available to Eligible Participants who are Highly Compensated
Employees (as defined in Section 2.06), in an amount greater (as a
percentage of the Eligible Participant's vested interest in his
Account) than the amount available to all Eligible Participants who
are not Highly Compensated Employees.
(b) All loans shall bear a reasonable rate of interest
as determined by the Committee, and every loan applicant shall receive
such information regarding the computation of interest as may be
required by law.
(c) Each loan shall provide for repayment within a
specified period of time in accordance with the requirements of the
Code and with options and requirements provided and imposed by the
Committee on a reasonably equivalent and nondiscriminatory basis;
provided, however, that (i) each loan, by its terms, must be repaid
within five years (except that if the Committee is satisfied that the
loan proceeds will be used to purchase the principal residence of the
Eligible Participant, the Committee may, in its sole discretion,
establish a longer term for repayment); and (ii) each loan must
require substantially level amortization over the term of the loan,
with payments not less frequently than quarterly.
(d) If an event of default occurs with respect to any
loan, the Committee may instruct the Trustee to accelerate repayment
of the loan and to withdraw from the Eligible Participant's Account
under the Plan, to the extent vested, and to the extent assigned as
security for the loan, up to an amount equal to the entire unpaid
principal and accrued interest. The Committee may also instruct the
Company to effect payments of such principal and interest by payroll
deduction to the extent permitted by law. In the case of any loan
attributable to Section 401(k) Contributions of an Eligible
Participant who is an Employee, the Committee shall direct the Trustee
to make such loan only if such Eligible Participant agrees that
payments of principal and interest shall be effected by payroll
deduction, and the Committee shall instruct the Company to effect such
payments by payroll deduction to the extent permitted by law.
40<PAGE>
(e) All loans shall provide that the entire unpaid
principal balance and accrued interest thereon shall be due and
payable as of the date the Participant (or his Beneficiary in the case
of the Participant's death) becomes eligible to receive a distribution
under Article IX, and the Committee may instruct the Trustee to
withhold from such distribution up to an amount equal to such
principal and interest. If the amount of such distribution is
insufficient to repay all such principal and interest, the Participant
(or his estate) shall remain liable therefor.
(f) The Committee may establish a minimum amount that
may be borrowed hereunder; provided, however, that such minimum amount
shall not exceed $1,000. The Committee shall not allow a loan to be
made to an Eligible Participant to the extent that the balance of such
loan (when added to the outstanding balances of all other loans to the
Eligible Participant from the Plan) would exceed the lesser of (i)
$50,000 (reduced for loans made, renewed, negotiated, modified, or
extended after December 31, 1986, by the excess, if any, of (x) the
highest aggregate outstanding balance of loans to the Eligible
Participant from the Plan during the one-year period ending on the day
before the date on which such loan would be made, over (y) the
aggregate outstanding balance of loans to the Eligible Participant
from the Plan on the date on which such loan would be made), (ii) 50%
of the total vested portion of the Eligible Participant's Account
under the Plan, or (iii) such amount as may be prescribed by the
Committee.
(g) The Eligible Participant's interest in one or more
of the Funds in which his Account is invested shall be reduced, in
such manner as may from time to time be prescribed by the Committee,
by an amount equal to the principal amount of any loan or loans to
him, and such loan or loans shall be credited as an asset of his
Account. Repayments of principal and payments of interest shall be
invested in the Funds in such manner as may from time to time be
prescribed by the Committee. A procedure shall be established for
separately accounting for reductions in the Funds, repayments of
principal and payments of interest attributable to Section 401(k)
Contributions.
(h) All determinations of the Committee respecting any
loan application shall be final, conclusive, and binding on all
interested parties. The Committee shall have the authority to adopt
additional terms and conditions for loans, including, without
limitation, rules regarding the financial ability of the Eligible
Participant to repay the amount he seeks to borrow, provided that all
such terms and conditions shall be nondiscriminatory and shall apply
to all Eligible Participants on a reasonably equivalent basis.
41<PAGE>
10.07 Loans Made After April 1, 1994. With respect to
------------------------------
loans obtained on and after April 1, 1994, the following provisions
will govern loans from this Plan.
(a) Administration: The Committee or its designee
--------------
shall be responsible for administration of the loan program.
(b) Eligibility: A Participant who is an Employee
-----------
may borrow from his Account balances in the Plan. Except in the case
of parties in interest, only active Employees are eligible to apply
for a loan from the Plan.
(c) Conditions of Loan: Any loan from the Plan
------------------
will be subject to the following conditions:
(1) The loan will be in the form of cash and may
not exceed the total Account balances, which shall serve as the sole
collateral for the loan.
(2) The loan may not exceed the lesser of 50
percent of the market value of the total Accounts at the time that a
written loan request from a Participant is received by the Committee
or $50,000 reduced by the excess (if any) of the highest balance of
loans outstanding during the 1-year period ending on the date the new
loan is made over the balance of loans outstanding on the date the new
loan is made.
(3) The minimum loan will be $1,000.
(4) The term of a loan will be not less than six
months and not more than 5 years in increments of six months, with the
exception of any outstanding loans from the Amax Plan which were in
existence on March 31, 1994.
(5) Execution and delivery to the Committee of a
payroll deduction authorization for the term of the loan repayment.
(6) Execution and delivery to the Committee of a
promissory note in form satisfactory to the Committee.
(7) One new loan will be allowed each Plan Year,
but no more than one outstanding loan will be permitted at any one
time. In addition, any loans in existence on March 31, 1994 will be
an exception to the single outstanding loan requirement until such
loans have been paid off.
(8) The loan will be treated as an asset of each
individual Participant.
42<PAGE>
(9) The limits of this Section will apply to all
loans to the Participant under all plans maintained by the Company.
(d) Employee Direction: A Participant shall execute
------------------
a written directive to the Committee setting forth the amount of the
requested loan.
(e) Valuation of Account: The valuation of an
--------------------
Account, or the sale or redemption of securities credited to an
Account, or both, will be made on the date or dates selected by the
Committee and within a reasonable time after receipt by the Committee
of a written application for a loan.
(f) Order of Account and Asset Conversion: The
-------------------------------------
Committee will convert Accounts and assets on a pro rata basis to
obtain loan proceeds in the following order: Supplemental Account,
Basic Matched Account, Rollover Account, Unmatched Tax Deferred
Savings Account, Matched Tax Deferred Savings Account and Company
Contributions Account.
(g) Interest On Loan: Interest will be charged
----------------
on loans at a commercially reasonable rate published for the first
business day of the month immediately preceding the month in which a
written directive for a loan is received by the Committee.
(h) Allocation of Loan Payments: Loan payments
---------------------------
which must be made at least quarterly, will be credited to a
Participant's Accounts in the reverse order from which such Accounts
provided loan proceeds.
(i) Prepayment of Loan: At any time during a
------------------
twelve month period, a Participant may make a single lump sum
prepayment of all of an outstanding loan balance.
(j) Prepayment on Termination of Employment: A
---------------------------------------
Participant may prepay any outstanding loan balance prior to
Termination of Employment. If a loan is not prepaid prior to
Termination of Employment, the outstanding balance will constitute a
distribution upon Termination of Employment. If a loan is not prepaid
prior to Termination of Employment and the Participant is a party in
interest (as defined in section 3(14) of ERISA), the outstanding
balance will be paid in monthly installments as more fully set forth
below. Participants who do not experience a Termination of Employment
but who are in an ineligible class of employees will continue to pay
the outstanding loan balance in monthly installments.
(k) Loans to Terminated Employees: Terminated
-----------------------------
Employees, who are parties in interest and who do not request a
43<PAGE>
distribution of their Account balances, will be permitted to continue
to make payments on pre-existing loans if said employees meet the
criteria for the continuance of such loans established by the
Committee.
Deferred vested Employees, who are parties in interest,
shall be permitted to obtain a loan from the Plan if said individuals
meet the criteria established by the Committee.
(l) Loan Default: Any loan to an active Employee
------------
will be treated as being in default if a scheduled monthly payment is
not made within ninety (90) days of the payment due date. Any loan to
a terminated Employee, who is a party in interest, will be treated as
being in default if a scheduled monthly payment is not made within
thirty days of the payment due date. A loan which is in default will
be treated as a distribution.
(m) Multiple Loans: Participants with more than
--------------
one outstanding loan on March 31, 1994 will be entitled to continue
repayment of said multiple loans, but on and after April 1, 1994, a
Participant will be entitled to only one outstanding loan at any time.
In addition, any Participant with a loan on March 31, 1994, which has
a repayment period of greater than five years due to the use of the
loan proceeds to purchase a principal residence will be entitled to
repay such a loan according to the amortization schedule established
at the time of the loan, but on and after April 1, 1994, all loans for
which application is made will be for a period no greater than five
years.
10.08 Loan Procedures. After receiving an Eligible
---------------
Participant's application, the Committee may direct the Trustee to
make a loan or loans to such Eligible Participant. Loan proceeds
shall be disbursed within such period of time following the filing of
the application as may be established by the Committee. Upon
acceptance of loan proceeds, the Eligible Participant shall assign as
security for the loan his vested interest in and to his Account under
the Plan but not in excess of 50 percent of such vested interest. All
loans shall be subject to the following provisions:
(a) Loans shall be available to all Eligible
Participants on a reasonably equivalent basis and shall not be made
available to Eligible Participants who are Highly Compensated
Employees (as defined in Section 2.06), in an amount greater (as a
percentage of the Eligible Participant's vested interest in his
Account) than the amount available to all Eligible Participants who
are not Highly Compensated Employees.
44<PAGE>
(b) All loans shall bear a reasonable rate of interest
as determined by the Committee, and every loan applicant shall receive
such information regarding the computation of interest as may be
required by law.
(c) Each loan shall provide for repayment within a
specified period of time in accordance with the requirements of the
Code and with options and requirements provided and imposed by the
Committee on a reasonably equivalent and nondiscriminatory basis;
provided, however, that (i) each loan, by its terms, must be repaid
within five years (except that if the Committee is satisfied that the
loan proceeds will be used to purchase the principal residence of the
Eligible Participant, the Committee may, in its sole discretion,
establish a longer term for repayment); and (ii) each loan must
require substantially level amortization over the term of the loan,
with payments not less frequently than quarterly.
(d) If an event of default occurs with respect to any
loan, the Committee may instruct the Trustee to accelerate repayment
of the loan and to withdraw from the Eligible Participant's Account
under the Plan, to the extent vested, and to the extent assigned as
security for the loan, up to an amount equal to the entire unpaid
principal and accrued interest. The Committee may also instruct the
Company to effect payments of such principal and interest by payroll
deduction to the extent permitted by law. In the case of any loan
attributable to Section 401(k) Contributions of an Eligible
Participant who is an Employee, the Committee shall direct the Trustee
to make such loan only if such Eligible Participant agrees that
payments of principal and interest shall be effected by payroll
deduction, and the Committee shall instruct the Company to effect such
payments by payroll deduction to the extent permitted by law.
(e) All loans shall provide that the entire unpaid
principal balance and accrued interest thereon shall be due and
payable as of the date the Participant (or his Beneficiary in the case
of the Participant's death) becomes eligible to receive a distribution
under Article IX, and the Committee may instruct the Trustee to
withhold from such distribution up to an amount equal to such
principal and interest. If the amount of such distribution is
insufficient to repay all such principal and interest, the Participant
(or his estate) shall remain liable therefor.
(f) The Committee may establish a minimum amount that
may be borrowed hereunder; provided, however, that such minimum amount
shall not exceed $1,000. The Committee shall not allow a loan to be
made to an Eligible Participant to the extent that the balance of such
loan (when added to the outstanding balances of all other loans to the
Eligible Participant from the
45<PAGE>
Plan) would exceed the lesser of (i) $50,000 (reduced for loans made,
renewed, negotiated, modified, or extended after December 31, 1986, by
the excess, if any, of (x) the highest aggregate outstanding balance
of loans to the Eligible Participant from the Plan during the one-year
period ending on the day before the date on which such loan would be
made, over (y) the aggregate outstanding balance of loans to the
Eligible Participant from the Plan on the date on which such loan
would be made), (ii) 50% of the total vested portion of the Eligible
Participant's Account under the Plan, or (iii) such amount as may be
prescribed by the Committee.
(g) The Eligible Participant's interest in one or more
of the Funds in which his Account is invested shall be reduced, in
such manner as may from time to time be prescribed by the Committee,
by an amount equal to the principal amount of any loan or loans to
him, and such loan or loans shall be credited as an asset of his
Account. Repayments of principal and payments of interest shall be
invested in the Funds in such manner as may from time to time be
prescribed by the Committee. A procedure shall be established for
separately accounting for reductions in the Funds, repayments of
principal and payments of interest attributable to Section 401(k)
Contributions.
(h) All determinations of the Committee respecting any
loan application shall be final, conclusive, and binding on all
interested parties. The Committee shall have the authority to adopt
additional terms and conditions for loans, including, without
limitation, rules regarding the financial ability of the Eligible
Participant to repay the amount he seeks to borrow, provided that all
such terms and conditions shall be nondiscriminatory and shall apply
to all Eligible Participants on a reasonably equivalent basis.
46<PAGE>
ARTICLE XI
BENEFICIARIES AND GUARDIANS OR LEGAL REPRESENTATIVES
----------------------------------------------------
11.01 Beneficiary Designation.
-----------------------
(a) Each Participant shall file with the Committee or
its secretary a written designation of a beneficiary or beneficiaries
to receive any payment or distribution due upon his death and may from
time to time change or revoke any such designation by filing such
change or revocation with the Committee or its secretary in writing on
a form prescribed by it. However, if a married Participant wishes to
designate an individual other than his spouse as a beneficiary, such
designation shall be consented to in writing by the spouse, which
consent shall acknowledge the effect of the designation and be
witnessed by a Plan representative or a notary public.
Notwithstanding the foregoing, spousal consent shall be unnecessary if
it is established (to the satisfaction of a Plan representative) that
there is no spouse or that the required consent cannot be obtained
because the spouse cannot be located, or because of other
circumstances prescribed by Treasury Regulations. The Company, the
Committee and the Trustee may rely upon a Participant's designation of
Beneficiary or Beneficiaries last filed in accordance with the terms
of this Plan.
(b) If no such designation by a Participant is
received prior to such Participant's death, or if no beneficiary so
designated survives such Participant, any distribution to be made
under the Plan on account of the death of such Participant shall be
made to the Participant's surviving spouse if he has one, or to the
Participant's legal representative if he is not survived by a spouse.
11.02 Incapacity. Any distribution to be made hereunder
----------
to any person who is legally incompetent or to an infant shall be made
to the duly appointed guardian, legal representative or committee, as
the case may be, of such person, if any, or if no such guardian, legal
representative or committee shall have been appointed, the Trustee, on
the specific direction of the Committee, may hold such distribution in
the form of Common Stock of the Company, or from time to time for
reasonable periods in cash, or may deposit the amount thereof in cash
in a savings account for the benefit of such person without the
Trustee, the Committee, or the Company becoming liable for any
interest thereon or with respect to any fluctuations in value thereof,
until such time as such a guardian, legal representative or committee
shall be duly appointed or any such infant shall have become an adult,
as the case may be.
47<PAGE>
ARTICLE XII
THE TRUSTEE
-----------
12.01 Trustee. The Board of Directors of the Company
-------
shall appoint one or more individuals and/or corporations to act as
Trustee under the Plan, and at any time may remove, and appoint a
successor to, any such person or corporation.
12.02 Trust Fund. All of the assets of the Plan shall
----------
be held in a trust created under a written trust agreement entered
into by the Company and the Trustee.
48<PAGE>
ARTICLE XIII
THE COMMITTEE
-------------
13.01 Committee. The Cyprus Amax Minerals Company
---------
Savings Plan Administrator (the "Committee") shall administer the
Plan, which shall consist of the three-person as designated by the
Board of Directors.
The members of the Committee shall be appointed from time to
time by and shall serve at the pleasure of the Board of Directors of
the Company.
No Participant who shall have become a member of the
Committee shall participate in the determination by the Committee as
to matters pertaining to his own participation.
Any member of the Committee may resign by delivering his
written resignation to the Board of Directors and the Secretary of the
Committee.
13.02 Quorum. Two members of the Committee shall
------
constitute a quorum for the transaction of business. All resolutions
or other actions taken by the Committee at any meeting shall be by the
vote of a majority of those present at any such meeting. Upon
concurrence in writing of a majority of the members at the time in
office, action by the Committee may be taken otherwise than at a
meeting.
13.03 Procedure. The members of the Committee shall
---------
elect one of their number as Chairman and shall appoint a secretary
who may, but need not, be a member of the Committee. They may appoint
from their number such committees with such powers as they shall
determine, may authorize one or more of their number or any agent to
execute or deliver any instrument or instruments on their behalf, and
may employ such counsel, agents and other services as they may require
in carrying out their duties. The Committee shall notify the Trustee
in writing of any and all appointments of such secretary or any such
agent and the Trustee may thereafter accept and rely upon any document
executed by such secretary or agent as representing action by the
Committee until the Committee shall file with the Trustee a revocation
of such appointment or authorization.
13.04 Powers and Duties. The Committee shall have
-----------------
full power and authority to administer the Plan and to interpret its
provisions. The Committee may, in their sole discretion, delegate
part or all of its responsibility (other than Trustee
responsibilities, as defined in the Act) hereunder. To the extent of
any such delegation, the delegate shall have the
49<PAGE>
duties, powers, authority and discretion of the Committee. Any
interpretation of the provisions of the Plan by the Committee or any
act of administration by the Committee shall be final and binding upon
all Participants. Subject to the limitations of the Plan the
Committee shall, from time to time, establish rules and regulations
for the administration of the Plan and the transaction of its
business. The members of the Committee shall discharge their duties
in the interest of the Participants and their beneficiaries, with the
care, skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of a like
character and with like aims, and in accordance with the requirements
imposed upon fiduciaries by the Act.
13.05 Disbursements from the Trust. The Committee is
----------------------------
expressly authorized and empowered to direct the Trustee with respect
to any and all payments and disbursements to be made from any of the
Funds.
13.06 Appointment of Investment Manager.
---------------------------------
(a) The Committee is expressly authorized and
empowered to appoint one or more Investment Managers, provided that
any Investment Manager so appointed shall qualify as such under the
terms of the Act, and is expressly authorized and empowered to
allocate and reallocate funds for investment among Investment Managers
and to remove any Investment Manager at any time. An Investment
Manager shall have the exclusive right to direct the Trustee as to the
investment of contributions and income attributable to the Funds (or
any portion of the Fund that may be designated by the Committee) as
set forth in Section 5.02.
(b) The Committee shall notify the Trustee in writing
of any appointment of an Investment Manager and the Trustee shall
thereafter accept and execute any directions of the Investment Manager
(with respect to that portion of the Funds over which the Committee
granted such Investment Manager control) until such time as the
Committee shall file with the Trustee a notice of revocation of such
appointment.
(c) The Committee may require an Investment Manager to
prepare and submit, from time to time or at such intervals as the
Committee may specify, such information relating to its investment
activities, policies and performance as the Committee may deem
appropriate.
(d) The Committee shall be responsible for
periodically reviewing the performance of an Investment Manager and
shall submit quarterly investment reports to the Board of Directors,
which reports review and analyze the performance of
50<PAGE>
each such Investment Manager appointed by the Committee. The
Committee shall also cause to be maintained accounts showing all the
investments held under the trust and shall submit investment reports
to the Committee at any time such reports are requested by the
Committee and in no event less than annually. Each member of the
Committee shall use that degree of care, skill, prudence and
diligence, under the circumstances then prevailing, that a prudent man
acting in a like capacity and familiar with such matters would use in
his conduct of a similar situation.
13.07 Appointment of Insurance Company. The Committee
--------------------------------
is expressly empowered to appoint one or more insurance companies from
which guaranteed investment contracts will be purchased with the
monies held in a Fund and is expressly empowered to remove any such
insurance company at any time. The Committee shall notify the Trustee
in writing of any appointment or removal of an insurance company under
this Section.
13.08 Records. The Committee shall maintain or cause
-------
to be maintained all records which they shall deem necessary or
advisable in order to show, when necessary for purposes of the Plan,
the transactions relating to each Fund in the Participant's Account.
13.09 Expenses. All administrative expenses of the
--------
Plan shall be borne by the Company and paid at the request of the
Committee; provided, however, that any reasonable expenses incurred by
the Trustee in performing its duties and such reasonable compensation
of the Trustee as may be agreed upon between the Company and the
Trustee shall constitute a charge upon the Funds until paid by the
Company.
13.10 Claims Procedure.
----------------
(a) Prior to November 15, 1993, the Committee shall
provide adequate notice in writing to any Participant or beneficiary
whose claim for benefits under the Plan has been denied, setting forth
specific reasons for denial written in a manner calculated to be
understood by the Participant. In addition, the Committee shall
afford a reasonable opportunity to any Participant whose claim for
benefits has been denied for a full and fair review of its decision
under procedures specified by the Act, or regulations thereunder.
(b) The following provisions shall apply as of
November 15, 1993:
(1) Filing And Initial Determination Of Claim.
-----------------------------------------
Any Member, beneficiary, or his duly authorized representative may
file a claim for a Plan benefit to which the claimant believes that he
is entitled. Such a claim must be in
51<PAGE>
writing and delivered to the Committee in person or by certified mail,
postage prepaid. Within 90 days after receipt of such claim, the
Committee shall deliver personally or send to the claimant by
certified mail, postage prepaid, notice of the granting or denying, in
whole or in part, of the claim, unless special circumstances require
an extension of time for processing the claim. In no event may the
extension period exceed 90 days from the end of the initial period.
If an extension is necessary, the claimant will be given a written
notice to this effect prior to the expiration of the initial 90-day
period. The Committee has full discretion to deny or grant a claim in
whole or in part. If notice of a claim is not furnished in accordance
with this Paragraph (1), the claim will be deemed denied and the
claimant will be permitted to exercise his right of review pursuant to
Paragraphs (3) and (4) of this Section.
(2) Duty Of Committee Upon Denial Of Claim.
--------------------------------------
The Committee will provide to every claimant who is denied a claim for
benefits written notice setting forth in a manner calculated to be
understood by the claimant:
(A) the specific reason or reasons for the
denial;
(B) specific reference to pertinent Plan
provisions on which the denial is based;
(C) a description of any additional material
or information necessary for the claimant to perfect the claim and an
explanation of why the material is necessary; and
(D) an explanation of the Plan's claim
review procedure.
(3) Review Of Claim Denial. Within 60 days
----------------------
after receipt by the claimant of written notification of the denial in
whole or in part of his claim, the claimant or his duly authorized
representative, upon written application to the Committee in person or
by certified mail, postage prepaid, may request the Committee to
review the denial, review pertinent documents and submit issues and
comments in writing. The Committee shall make a prompt decision on
the review. The decision on review shall be written in a manner
calculated to be understood by the claimant, and shall include
specific reasons for the decision and specific references to the
pertinent Plan provisions on which the decision is based. The
decision on review shall be made not later than 60 days after the
Committee's receipt of a request for a review, unless special
circumstances require an extension of time for processing, in which
case a decision shall be rendered not later than 120 days after
receipt of a request for review. If an extension is necessary, the
52<PAGE>
claimant shall be given written notice of the extension prior to the
expiration of the initial 60-day period. If notice of the decision on
the review is not furnished in accordance with this Paragraph (3), the
claim shall be deemed denied and the claimant shall be permitted to
exercise his right to legal remedy pursuant to Paragraph (4) of this
Section.
(4) Legal Remedy. After exhausting the claims
------------
procedure as provided under this Plan, nothing shall prevent any
person from pursuing any other legal remedy.
53<PAGE>
ARTICLE XIV
NON-ASSIGNABILITY OF FUNDS
--------------------------
14.01 Non-assignment. Except as permitted by
--------------
section 1021(c) of the Act, no right or interest of any Participant
under the Plan shall be assignable or transferable. Notwithstanding
the foregoing, the right to a benefit payable with respect to a
Participant pursuant to a "qualified domestic relations order" (within
the meaning of section 414(p) of the Code) may be created, assigned or
recognized. The Committee shall establish reasonable procedures to
determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders.
54<PAGE>
ARTICLE XV
AMENDMENT, TERMINATION OR MERGER
--------------------------------
15.01 Amendment or Termination. Prior to a Change in
------------------------
Control, by or pursuant to written action of the Board of Directors,
the Plan at any time may be altered or amended retroactively or
otherwise, or may be discontinued, terminated or suspended, in whole
or in part, in any such case without the consent of the Trustee or of
any of the Participants; provided that no such action shall diminish
the interest of any Participant in any of the Funds as of the
effective date of such action (unless required in order to comply with
the qualification requirements of the Code). On complete
discontinuance of contributions or termination of the Plan, in whole
or in part, the interest of each affected Participant shall be
nonforfeitable.
15.02 No Reversion. No part of the corpus or income of
------------
any of the Funds shall ever revert to the Company in any event, and no
part of the corpus or income of any of the Funds shall at any time be
used for or diverted to purposes other than for the exclusive benefit
of the Participants or their Beneficiaries.
15.03 Merger, Consolidation or Transfer. In the case
---------------------------------
of any merger or consolidation of this Plan with, or transfer of
assets or liabilities of this Plan to any other plan, each Participant
in this Plan shall be entitled to receive a benefit immediately after
the merger, consolidation or transfer which is equal to or greater
than the benefit he would have been entitled to receive immediately
before the merger, consolidation or transfer.
55<PAGE>
ARTICLE XVI
TOP-HEAVY PROVISIONS
--------------------
16.01 Definitions. This Article shall be interpreted
-----------
in accordance with section 416 of the Code and the regulations
promulgated thereunder. Regardless of how the terms defined in this
Article are otherwise defined in the Plan, the definitions in
Subsection 17.01(a) - (g) below and any other definitions in this
Article shall govern for the purpose of this Article.
(a) The "Benefit Amount" for any Employee means
--------------
(1) in the case of any defined benefit plan, the present value (the
present value shall be computed using a 5% interest assumption and the
mortality assumptions contained in the Plan for benefit equivalence
purposes) of his normal retirement benefit, determined on the
Valuation Date as if the Employee terminated on such Valuation Date,
plus the aggregate amount of distributions made to such Employee
within the five-year period ending on the Determination Date (except
to the extent already included on the Valuation Date) and (2) in the
case of any defined contribution plan, the sum of the amount credited,
on the Determination Date, to each of the accounts maintained on
behalf of such employee under such plan plus the aggregate amount of
distributions made to such Employee within the five-year period ending
on the Determination Date.
(b) "Company" shall mean any company (including
-------
unincorporated organizations) participating in the Plan or plans
included in the "aggregation group" as defined in this Article.
(c) "Determination Date" shall mean the last day
------------------
of the preceding Plan Year or in the case of the first Plan Year of
the Plan, the last day of such Plan Year.
(d) "Employees" shall mean employees, former
---------
employees, beneficiaries, and former beneficiaries who have a Benefit
Amount greater than zero on the Determination Date.
(e) "Key Employee" shall mean any Employee who is
------------
a key employee as defined in section 416(i) of the Code. This
definition shall be interpreted in accordance with section 416(i) of
the Code and the regulations promulgated thereunder and such rules are
hereby incorporated herein by reference.
(f) "Valuation Date" shall mean the first day (or
--------------
such other date which is used for computing plan costs for minimum
funding purposes) of the twelve-month period ending on the
Determination Date.
56<PAGE>
(g) A "Year of Service" shall be calculated using
---------------
the Plan rules that normally apply for determining vesting service.
16.02 Determination of Top-Heaviness. This Plan shall
------------------------------
be top-heavy for any Plan Year if, as of the Determination Date the
sum of the Benefit Amounts of all employees who are Key Employees
exceeds 60% of the sum of the Benefit Amounts for all Employees. For
purposes of this calculation only, the following rules shall apply:
(a) The Benefit Amounts of all Employees who are not
Key Employees and who were Key Employees during any prior Plan Year
shall be disregarded.
(b) The Benefit Amounts of all employees who have not
received any compensation from any Company (other than benefits under
this Plan) at any time during the five-year period ending on the
Determination Date shall be disregarded.
(c) This calculation shall be made by aggregating any
plans qualified under section 401(a) of the Code in which a Key
Employee participates or which enables this Plan to meet the
requirements of section 401(a)(4) or section 410 of the Code; all
plans so aggregated constitute the "aggregation group." The Company
may also aggregate any such plan to the extent that such plan, when
aggregated with this aggregation group, continues to meet the
requirements of section 401(a)(4) and section 410 of the Code.
(d) This calculation shall be made in accordance with
section 416 of the Code and the regulations promulgated thereunder and
such rules are hereby incorporated by reference.
16.03 Top-Heavy Provisions. If the Plan is top-heavy
--------------------
for any Plan Year, the following provisions shall apply to such Plan
Year:
(a) (1) Except to the extent not required by
section 416 of the Code or any other provision of law, notwithstanding
any other provision of this Plan, if this Plan and all the other plans
which are a part of the aggregation group are defined contribution
plans, each Participant (and any other employee required by
section 416 of the Code) other than Key Employees shall receive an
allocation of employer contributions and forfeitures from a plan which
is part of the aggregation group at least equal to 3% (or, if lesser,
the largest percentage allocated to any Key Employee for the Plan
Year) of such Participant's section 415 compensation for such Plan
Year (the "defined contribution minimum"). For the purposes of this
subsection, a non-Key Employee shall be entitled to a
57<PAGE>
contribution if he is employed on the last day of the Plan Year (i)
regardless of his level of compensation, (ii) without regard to
whether he has made any mandatory contributions required under the
Plan, and (iii) regardless of whether he has less than 1,000 hours of
service (or the equivalent) for any accrual computation.
(2) Except to the extent not required by
section 416 of the Code or any other provision of law, notwithstanding
any other provisions of this Plan, if this Plan or any other plan
which is part of the aggregation group is a defined benefit plan, each
Participant who is a participant in any such defined benefit plan (who
is not a Key Employee) who accrues a full Year of Service during such
Plan Year (and any other employee so required by section 416 of the
Code) shall be entitled to an annual normal retirement benefit from a
defined benefit plan which is part of the aggregation group which
shall not be less than the product of (1) the Employee's average
compensation for the five consecutive years when the employee had the
highest aggregate compensation and (2) the lesser of 2% per Year of
Service to 20% (the "defined benefit minimum"). For purposes of
calculating the defined benefit minimum, (1) compensation shall be
defined as it is under section 415(c) of the Code and shall not
include compensation in Plan Years after the last Plan Year in which
the Plan is top-heavy and (2) a Participant shall not receive a Year
of Service in any Plan Year before January 1, 1984 or in any Plan Year
in which the Plan is not top-heavy. This defined benefit minimum shall
be expressed as a life annuity (with no ancillary benefits) commencing
at Normal Retirement Age. Benefits paid in any other form or time
shall be the actuarial equivalent (as provided in the Plan for
retirement benefit equivalence purposes) of such life annuity. Except
to the extent not required by section 416 of the Code or any other
provisions of law, each Participant (other than Key Employees) who is
not a participant in any such defined benefit plan shall receive the
defined contribution minimum (as defined in Paragraph (a)(1) above).
(b) The maximum amount of a Participant's compensation
which shall be taken into account under the Plan for such Plan Year
shall be $150,000. Such amount shall be adjusted in accordance with
section 416(d)(2) of the Code.
(c) If the sum of Benefit Amounts of all employees who
are Key Employees exceeds 90% of the sum of the Benefit Amounts for
all the Employees as of a Determination Date, "1.0" shall be
substituted for "1.25" in the definitions of Defined Benefit Plan
Fraction and Defined Contribution Plan Fraction as utilized in this
Plan. If the Plan is top-heavy but the sum of the Benefit Amounts of
all employees who are Key Employees does not exceed 90% of the sum of
the Benefit Amounts for all the Employees as of a Determination Date,
"1.0" shall be
58<PAGE>
substituted for "1.25" in the definitions of Defined Benefit Plan
Fraction and Defined Contribution Plan Fraction as utilized in this
Plan, unless this Plan and all other plans which are part of the
aggregation group provide a benefit under Section 17.03(a) where "4%"
is substituted for "3%" therein, "3%" is substituted for "2%" therein
and "20%" therein is increased by one percent for each year this
Section 17.03 applies (for a total increase of not more than ten
percent).
59<PAGE>
ARTICLE XVII
GENERAL PROVISIONS
------------------
17.01 Statement of Account. As soon as practicable
--------------------
after the close of each Plan Year, the Committee shall cause to be
sent to each Participant a written statement of his Account.
17.02 No Employment Rights. The establishment of the
--------------------
Plan shall not be construed as conferring any legal rights for a
continuation of employment nor shall it interfere with the rights of
the Company to discharge any Participant from its employment and to
treat him without regard to the effect which such treatment might have
upon him as a Participant.
17.03 Furnishing Data. Each Participant shall be
---------------
required to furnish the Committee with such information and data as
may be considered by the Committee necessary for the proper
administration of the Plan. Evidence and data submitted in
conjunction with any retirement, pension or profit-sharing program of
the Company may be accepted and used by the Committee under the Plan.
17.04 Governing Law. The administration of the Plan,
-------------
and any trust established under the Plan, shall be governed by the
laws of the State of Colorado to the extent not inconsistent with the
Act, and any person or corporation who now is or shall subsequently
become a party to the Plan shall be deemed to consent to this
provision.
17.05 Additional Company Contributions. If the number
--------------------------------
of shares of Common Stock held in Company Contributions Account as of
a given Valuation Date is less than the number of such shares held
therein as of the preceding Valuation Date, after taking into account
appropriate adjustments for any cash reserves held in Company
Contributions Account and any withdrawals, distributions and loans
occurring in the interim, additional Employer contributions shall be
made to Company Contributions Account to eliminate the difference. If
the number of such shares held in Company Contributions Account as of
a given Valuation Date is greater than the number of such shares held
therein as of the preceding Valuation Date, after taking into account
appropriate adjustments for any cash reserves held in Company
Contributions Account and any withdrawals, distributions and loans
occurring in the interim, the difference shall be held in a suspense
account called the Suspense Account - Company Contributions Account,
and the net value of such account shall be used to reduce the
contributions to Company Contributions Account otherwise required by
the Plan to be paid by the Employer to the Trustee. Notwithstanding
the foregoing, in no event shall the
60<PAGE>
aggregate additional Employer contributions made pursuant to this
Section 18.06, less the aggregate gains used to reduce Employer
contributions in accordance with this Section 18.06, exceed $50,000.
17.06 Rights Affected and Preservation of Accrued
-------------------------------------------
Benefit. Except as provided to the contrary herein, the provisions
- -------
of this amended and restated Plan shall apply only to Employees who
complete an hour of service on or after January 1, 1989. The rights
of any other individual shall be governed by the Plan as in effect
upon his separation from service, except to the extent expressly
provided in any amendment adopted subsequently thereto.
17.07 Severability of Provisions. If any provision of
--------------------------
this Plan is determined to be void by any court of competent
jurisdiction, the Plan shall continue to operate and, for the purposes
of the jurisdiction of that court only, shall be deemed not to include
the provisions determined to be void.
17.08 No Interest in Fund. No person shall have any
-------------------
interest in, or right to, any part of the principal or income of the
Fund, except as and to the extent expressly provided in this Plan and
in the Trust Agreement.
17.09 Withholding. The Committee and the Trustee shall
-----------
have the right to withhold any and all state, local, and Federal taxes
which may be withheld in accordance with applicable law.
17.10 Construction.
------------
(a) Except where otherwise clearly indicated by the
context, the masculine pronoun shall include the feminine where and
the singular shall include the plural, and vice versa.
(b) The titles and headings of the Articles and
Sections in this Plan are for convenience only. In case of ambiguity
or inconsistency, the text rather than the titles or headings shall
control.
(c) Any term used herein without an initial capital
letter that is used in a provision of the Code with which this Plan
must comply to meet the requirements of section 401(a)
61<PAGE>
of the Code shall be interpreted as having the meaning used in such
provision of the Code, if necessary for the Plan to comply with such
provision.
Executed this ______ day of ____________, 19__.
CYPRUS AMAX MINERALS COMPANY
Committee
By:
-----------------------------------
Philip C. Wolf, Chairman
By:
-----------------------------------
Francis J. Kane, Member
By:
-----------------------------------
Gerard H. Peppard, Member
62<PAGE>
EXHIBIT A
Eligible Employees
------------------
Employees designated to be entitled to be Eligible Employees
pursuant to Section 1.09 of the Plan:
1. Hourly rated employees of the Amax Zinc Company, Inc.
at Sauget, Illinois, and represented by the Oil,
Chemical and Atomic Workers International Union, Local
7-347, AFL-CIO.
2. Hourly rated employees of Climax Molybdenum Company and
represented by the Oil, Chemical and Atomic Workers
International Union, Local No. 2-24410, AFL-CIO; the
International Brotherhood of Electrical Workers, Local
No. 11823, AFL-CIO; and the Office and Professional
Employees International Union, Local No. 410, AFL-CIO.
3. Hourly rated employees of the Amax Potash Corporation
at Carlsbad, New Mexico, and represented by the United
Steelworkers of America, Local No. 181, AFL-CIO.
4. Hourly rated employees of Climax Molybdenum Company at
Langeloth, Pennsylvania, and represented by the
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Local
No. 1311.
5. Effective March 1, 1988, hourly rated employees of Amax
Metals Recovery, Inc. at Braithwaite, Louisiana, and
represented by the United Steel Workers of America,
Local No. 8377.
6. Effective May 1, 1988, hourly rated employees of Amax
Specialty Coppers Corporation at Carteret, New Jersey,
and represented by the Amax Specialty Employee
Association.
7. Effective May 1, 1989, hourly rated employees of Amax
Potash Corporation at Dumas, Texas, and represented by
the Oil, Chemical and Atomic Workers International
Union, Local No. 4-487, AFL-CIO.
A-1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on
Form S-8 of Cyprus Amax Minerals Company of our report dated
February 17, 1995, which appears on page 23 of the 1994 Annual Report
of Cyprus Amax Minerals Company to Shareholders, which is incorporated
by reference in its Annual Report on Form 10-K for the year ended
December 31, 1994. We also consent to the incorporation by reference
of our report on the Financial Statement Schedule, which appears on
page 30 of such Annual Report on Form 10-K.
Price Waterhouse LLP
PRICE WATERHOUSE LLP
Denver, Colorado
July 14, 1995
