<PAGE>
As filed with the Securities and Exchange Commission on May 16, 1994
Registration No. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------------
AMAX GOLD INC.
(Exact name of registrant as specified in its charter)
---------------------
Delaware 06-1199974
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
9100 East Mineral Circle
Englewood, Colorado 80112
(303) 643-5500
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
The Thrift Plan for Employees of AMAX Gold Inc. And Its Subsidiaries
(Full title of plan)
------------------------
Paul J. Hemschoot, Jr. With copies to:
AMAX Gold Inc. Paul Hilton, Esq.
9100 East Mineral Circle Davis, Graham & Stubbs
Englewood, Colorado 80112 370 Seventeenth Street, Suite 4700
(303) 643-5540 Denver, Colorado 80202
(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 each class of to be offering price aggregate Amount of
securities to be registered registered per share offering price registration fee
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
Common Stock ($0.01 par value)....... 1,000,000 shares $7.50(1) $7,500,000(1) $2,586.21
Interests in The Thrift Plan for
and Employees of AMAX Gold Inc. And
Its Subsidiaries..................... (2) (3) (3) (3)
====================================================================================================================
</TABLE>
(1) 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 May 12, 1994, as reported on the New York Stock Exchange.
(2) 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 Thrift Plan for Employees of AMAX Gold Inc.
and its Subsidiaries.
(3) Pursuant to Rule 457(h)(2) under the Securities Act of 1933, no separate fee
is required to register plan interests.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. Incorporation of Documents by Reference.
AMAX Gold Inc. (the "Company") and The Thrift Plan for Employees of Amax
Gold Inc. And Its Subsidiaries (the "Thrift 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 (i) Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 (No. 1-9620), filed with the Commission on March 18, 1994,
(ii) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994, filed on May 16, 1994, and (iii) the Thrift Plan's latest
annual report to be filed pursuant to Section 13(a) or 15(d) of the Exchange
Act of 1934 (the "Exchange Act").
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8A (No. 1-9617), filed with the
Commission pursuant to the Exchange Act on July 9, 1987, as amended by filings
on Form 8 constituting Amendment No. 1 to the Form 8A, filed with the Commission
on July 28, 1987.
All other documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a Post-Effective
Amendment 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.
5. Interests of Named Experts and Counsel.
Mr. Paul J. Hemschoot Jr. is General Counsel to the Company and is
providing the opinion filed as Exhibit 5.1 to this Registration Statement.
Mr. Hemschoot is beneficial owner of 9,927 shares of Common Stock of the
Company, including shares beneficially owned under the Thrift Plan and other
employee benefit plans of the Company.
II-1
<PAGE>
6. Indemnification of Directors and Officers.
Article SIXTH of the Company's Restated Certificate of Incorporation and
Article VI of the Company's Bylaws (collectively the "Charter Documents")
confers on the Company's officers and directors indemnification rights.
Section 102 of the Delaware General Corporation Law (the "Delaware Law")
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary
damage for a breach of his fiduciary duty as a director, except in the case
where the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit. Article SIXTH of The
Company's Restated Certificate of Incorporation, eliminates directors'
personal liability as set forth above.
Section 145 of the Delaware Law authorizes corporations to indemnify
directors and officers against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement reasonably incurred in
connection with civil, criminal, administrative, or investigative actions,
suits or proceedings to which such persons are parties or threatened to be
made a party by reason of their corporate position (other than actions by or
in the right of the corporation to procure a judgment in its favor--so called
"derivative suits") if such persons acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. With respect to
derivative suits, Section 145 prescribes a similar standard of care but limits
the available indemnification to expenses (including attorneys' fees)
reasonably incurred in connection with the defense or settlement of such
action or suit and further provides that if the derivative suit results in a
judgment that the person seeking indemnification is liable to the corporation,
no such indemnification is to be made without court approval. Section 145(f)
of the Delaware Law also specifically permits corporations to provide their
officers, directors, employees and agents with indemnification and advancement
of expenses in addition to those specifically required and/or permitted to be
provided pursuant to other provisions of such Section 145.
Under the provisions of the Charter Documents, each person who was or is
made a party to, or is threatened to be made a party to or is involved in, any
action, suit or other legal proceeding (whether civil, criminal, administrative
or investigative) by reason of the fact that such person is or was a director or
officer of the Company, or is or was performing services at the Company's
request for another entity, including service with respect to employee benefit
plans, shall be indemnified to the full extent permitted by Delaware Law as in
effect or as it may be amended against all costs, charges, expenses, liabilities
and losses (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred by
such person in connection with such proceeding. The rights to indemnification
conferred pursuant to the Charter Documents are contract rights and include the
right to receive payment for expenses of defending a proceeding as to which
there may be a right to indemnification prior to its final disposition, provided
that if the Delaware Law requires (and it currently does), such advance payment
shall be made only upon receipt by the Company of an undertaking to the effect
that all amounts so advanced will be repaid if it is ultimately found that the
party who received such amounts is not entitled to be indemnified. The effect of
providing that the indemnification rights are contract rights is to permit
indemnified individuals to enforce such provisions directly against the Company.
In addition, the Charter Documents authorize the Company to provide other
permissible indemnification. Finally, the Charter Documents provide that the
Company may (and it does) maintain insurance to protect itself and any of its
officers, directors, employees or agents, to the limit of such coverage, against
any expense, liability or loss, even if the Company would not have the power
itself to indemnify such person against such expense, liability or loss under
the Delaware Law.
II-2
<PAGE>
7. Exemption from Registration Claimed.
Not applicable.
8. Exhibits
4.1 Thrift Plan for Employees of AMAX Gold Inc. And Its Subsidiaries as
restated April 1, 1994.
5.1 Opinion and Consent of Paul Hemschoot, Esq., General Counsel of Amax
Gold Inc.
23.1 Consent of General Counsel. See Exhibit 5.1.
23.2 Consent of Coopers & Lybrand.
The Thrift Plan for Employees of AMAX Gold Inc. And Its Subsidiaries,
restated as of April 1, 1994 (the "Restated Plan"), will be timely
submitted to the IRS, and the Company will make all changes required by the
IRS in order to qualify the Restated Plan.
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.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") and the annual report for
The Thrift Plan pursuant to Section 15(d) of the Exchange Act which are
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 Company pursuant to the
II-3
<PAGE>
foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Denver, State of Colorado, on the 16th day of May,
1994.
AMAX GOLD INC.
By: /s/ Paul J. Hemschoot, Jr.
---------------------------------------
Paul J. Hemschoot, Jr.
Vice President, Secretary and
General Counsel
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 date indicated.
Signature Title Date
--------- ----- ----
/s/ Milton H. Ward
________________________ Chairman of the Board, President May 16, 1994
Milton H. Ward Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Mark A. Lettes
________________________ Vice President - Finance May 16, 1994
Mark A. Lettes and Chief Financial Officer
(Principal Financial Officer)
/s/ Pamela A. Saxton
________________________ Vice President and Comptroller May 16, 1994
Pamela A. Saxton (Principal Accounting Officer)
________________________ Director
Allen Born
/s/ Gerald J. Malys
________________________ Director May 16, 1994
Gerald J. Malys
II-5
<PAGE>
________________________ Director
Rockwell A. Schnabel
/s/ Vernon F. Taylor
________________________ Director May 16, 1994
Vernon F. Taylor, Jr.
/s/ Russell L. Wood
________________________ Director May 16, 1994
Russell L. Wood
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee of The Thrift Plan for Employees of Amax Gold Inc. And
Its Subsidiaries has duly caused this registration statement to be signed on
behalf of the Plan by the undersigned, thereunto duly authorized, in the City of
Denver, State of Colorado, on May 16, 1994.
By: /s/ Paul J. Hemschoot
-------------------------------------------
Paul J. Hemschoot, Plan Administrator
Committee Member
By: /s/ Richard B. Esser
-------------------------------------------
Richard B. Esser, Plan Administrator
Committee Member
By: /s/ Mark A. Lettes
-------------------------------------------
Mark A. Lettes, Plan Administrator
Committee Member
II-7
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
- -----------------------------------------------------------------------------
4.1 The Thrift Plan for Employees of Amax Gold Inc. And
Its Subsidiaries, as restated April 1, 1994.
5.1 Opinion and Consent of Paul Hemschoot, Esq., General
Counsel of Amax Gold Inc.
23.1 Consent of General Counsel. See Exhibit 5.1.
23.2 Consent of Coopers & Lybrand.
<PAGE>
THRIFT PLAN FOR THE EMPLOYEES OF AMAX GOLD INC.
AND ITS SUBSIDIARIES
Effective April 1, 1994
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
ARTICLE I
NAME AND PURPOSE OF PLAN.............................................. 1
ARTICLE II
DEFINITIONS............................................................ 1
ARTICLE III
PARTICIPATION.......................................................... 12
3.1 WHO MAY BECOME A PARTICIPANT...................................... 12
3.2 DETERMINATION OF PARTICIPANTS..................................... 12
3.3 PARTICIPATION UPON REEMPLOYMENT................................... 12
3.4 TERMINATION OF PARTICIPATION...................................... 12
ARTICLE IV
CONTRIBUTIONS.......................................................... 13
4.1 PARTICIPANT CONTRIBUTIONS......................................... 13
4.2 COMPANY CONTRIBUTIONS............................................. 14
4.3 CONTRIBUTION LIMITATIONS.......................................... 15
4.4 LIMITATION ON ANNUAL ADDITION..................................... 25
4.5 LIMITATION ON COMBINED BENEFITS AND CONTRIBUTIONS
OF ALL DEFINED BENEFIT AND DEFINED CONTRIBUTION
PLANS OF THE COMPANY.............................................. 26
4.6 TOP HEAVY PLAN PROVISIONS......................................... 27
4.7 EXCLUSIVE BENEFIT................................................. 28
4.8 COMPANY'S OBLIGATIONS............................................. 28
4.9 ROLLOVER AND TRANSFER CONTRIBUTIONS............................... 28
ARTICLE V
PARTICIPANT ACCOUNTS................................................... 29
5.1 PARTICIPANT ACCOUNTS.............................................. 29
5.2 ALLOCATION OF CONTRIBUTIONS....................................... 30
5.3 SUSPENSE ACCOUNT FOR UNALLOCATED FORFEITURES...................... 30
5.4 VESTING OF PARTICIPANT ACCOUNTS................................... 30
5.5 SERVICE INCLUDED IN DETERMINATION OF VESTED
ACCOUNTS.......................................................... 31
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(i)
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<S> <C>
ARTICLE VI
INVESTMENT OF ACCOUNTS................................................. 31
6.1 INVESTMENT CATEGORIES............................................. 31
6.2 INVESTMENT DIRECTIONS............................................. 32
6.3 DIVERSIFICATION ELECTION.......................................... 32
6.4 LIQUIDATION OF SECURITIES......................................... 32
6.5 INTERIM INVESTMENT................................................ 33
6.6 TRANSFER OR ROLLOVER ACCOUNTS..................................... 33
6.7 REINVESTMENT OF COMPANY MATCH ACCOUNT............................. 33
6.8 VALUATION OF PARTICIPANT ACCOUNTS................................. 33
ARTICLE VII
DISTRIBUTION FROM TRUST FUND........................................... 33
7.1 WHEN ACCOUNTS BECOME DISTRIBUTABLE................................ 33
7.2 TIME AND FORM OF PAYMENT.......................................... 33
7.3 DISPOSITION OF FORFEITABLE ACCOUNT ON TERMINATION
OF EMPLOYMENT..................................................... 36
7.4 SPENDTHRIFT TRUST PROVISIONS...................................... 36
7.5 DISTRIBUTION IN THE EVENT OF DEATH................................ 36
7.6 BENEFICIARIES..................................................... 37
7.7 WITHDRAWALS DURING SERVICE........................................ 38
7.8 QUALIFIED DOMESTIC RELATIONS ORDER................................ 40
7.9 DIRECT TRANSFERS AND ROLLOVERS.................................... 40
7.10 PARTICIPANT LOANS................................................. 41
ARTICLE VIII
FIDUCIARY OBLIGATIONS.................................................. 44
8.1 GENERAL FIDUCIARY DUTIES.......................................... 44
8.2 ALLOCATION OF FIDUCIARY RESPONSIBILITY............................ 44
8.3 LIABILITY INSURANCE AND INDEMNIFICATION........................... 44
8.4 PROHIBITED TRANSACTIONS........................................... 44
8.5 RECEIPT OF BENEFITS BY FIDUCIARIES................................ 44
8.6 COMPENSATION AND EXPENSES OF FIDUCIARIES.......................... 45
8.7 SERVICE BY FIDUCIARIES AND DISQUALIFIED PERSONS................... 45
8.8 PROHIBITION AGAINST CERTAIN PERSONS HOLDING CERTAIN POSITIONS..... 45
ARTICLE IX
PLAN ADMINISTRATOR..................................................... 45
9.1 APPOINTMENT OF PLAN ADMINISTRATOR................................. 45
</TABLE>
(ii)
<PAGE>
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Page
<S> <C>
9.2 INFORMATION TO BE MADE AVAILABLE TO COMMITTEE..................... 46
9.3 DUTIES AND POWER OF COMMITTEE..................................... 46
9.4 NOTICES FROM PARTICIPANTS......................................... 47
9.5 CLAIMS PROCEDURES................................................. 47
ARTICLE X
TRUSTEE................................................................ 48
10.1 TRUSTEE.......................................................... 48
10.2 VOTING SHARES OF COMPANY STOCK................................... 48
10.3 EMPLOYEE BENEFITS PORTFOLIO REVIEW COMMITTEE..................... 49
ARTICLE XI
CONTINUANCE, TERMINATION, AND
AMENDMENT OF PLAN AND TRUST............................................ 51
11.1 TERMINATION OF PLAN AND TRUST.................................... 51
11.2 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS OR LIABILITIES OF
THE PLAN......................................................... 51
11.3 AMENDMENTS TO PLAN AND TRUST..................................... 52
11.4 CHANGE IN CONTROL................................................ 52
11.5 PARTICIPATING COMPANIES.......................................... 52
ARTICLE XII
MISCELLANEOUS.......................................................... 53
12.1 BENEFITS TO BE PROVIDED SOLELY FROM THE TRUST FUND............... 53
12.2 NOTICES FROM PARTICIPANTS........................................ 53
12.3 TEXT TO CONTROL.................................................. 54
12.4 SEVERABILITY..................................................... 54
12.5 JURISDICTION..................................................... 54
12.6 GENDER AND PLURALS............................................... 54
</TABLE>
(iii)
<PAGE>
ARTICLE I
NAME AND PURPOSE OF PLAN
Effective January 1, 1976, AMAX Inc. established the AMAX Inc. Thrift Plan
for Salaried Employees (hereinafter called the "AMAX Plan") for the benefit of
Employees of the Company and its participating subsidiaries. The AMAX Plan was
amended and restated as of May 1, 1987, to comply with the provisions of the Tax
Reform Act of 1986 ("TRA") and other relevant regulations. The purpose of the
AMAX Plan was to encourage thrift on the part of Employees by furnishing them
with an opportunity and incentive to acquire an interest in Common Stock of AMAX
Inc. and other securities through Company contributions which matched a portion
of their own contributions to the Amax Plan, thus enabling them to participate
in the Company's earnings and to build additional funds for retirement.
Effective July 1, 1991, the AMAX Inc. Defined Contribution Pension Plan for
Salaried Employees was merged into the AMAX Plan. The AMAX Plan was amended and
restated effective as of January 1, 1991, to reflect this merger, and to comply
with final regulations issued pursuant to TRA and other relevant statutes or
regulations. Effective January 1, 1993, employees of Amax Gold Inc. ceased
participating in the ESOP portion of the AMAX Plan but were still entitled to
matching contributions, and further amendments were made to the AMAX Plan
involving the available investment funds.
On the Effective Date of this Thrift Plan (as defined in Section 2.15), the
portion of the AMAX Plan representing the interests of employees of Amax Gold
Inc. formed this Thrift Plan for The Employees of Amax Gold Inc. and its
subsidiaries, as reflected in this document. As indicated in this document,
Eligible Employees (as defined in Section 2.18) shall receive credit for all
service recognized under the AMAX Plan (as defined in Section 2.4) and the
accounts of Eligible Employees under the AMAX Plan shall become their accounts
under this Plan.
The Company, by execution of this agreement, amends and restates the Plan
to be known as the Thrift Plan for The Employees of AMAX Gold Inc. and its
Subsidiaries. The Plan was created for the exclusive benefit of Participants
and their Beneficiaries. The Plan is intended to qualify under Section 401 (a)
of the Code and under Section 401 (k) as a "qualified cash or deferred
arrangement.
ARTICLE II
DEFINITIONS
When used in the Plan, the following words will have the following
meanings, unless the context clearly indicates otherwise:
<PAGE>
2.1 "Account," unless otherwise indicated, means a Participant's entire
interest in the Plan.
2.2 "Affiliated Company" means any corporation that is a member of the
controlled group of corporations with the Company as defined in Code Section
1563(a) without regard to Subsection 1563(a)(4).
2.3 "AMAX Inc." shall mean AMAX Inc. but not any successor thereto.
2.4 "AMAX Plan" shall mean the AMAX Inc. Thrift Plan for Salaried Employees.
2.5 "Beneficial Owner", 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 the
Effective Date) under the Securities Exchange Act of 1934, as amended (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.
2.6 "Beneficiary" means the person who, under this Plan, becomes entitled to
receive a Participant's Account upon the Participant's death, including when
applicable the surviving spouse.
2.7 "Board of Directors," unless otherwise specified, means the Board of
Directors of AMAX Gold Inc.
2.8 "Break in Service" means a Period of Severance 12 consecutive months long
or longer beginning on or after January 1, 1991. "Break in Service" shall also
mean a Vesting Computation Period ending on or before December 31, 1991, during
which a Participant is credited with less than 501 Hours of Service. No more
than one one-year Break in Service may be credited for 1991.
2.9 "Change in Control" shall mean the satisfaction of one or more of the
following conditions:
[a] any person other than AMAX or Cyprus Amax Minerals Company, as
successor to AMAX by merger ("Cyprus Amax"), is or becomes the
Beneficial Owner, directly
-2-
<PAGE>
or indirectly, of securities of the Company representing 20 percent
or more of the combined voting power of the Company's then-
outstanding securities (a "20% Beneficial Owner"); provided,
however, that [i] 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 (ii) 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 the
Effective Date, 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 provided for pursuant to the
Agreement and Plan of Reorganization and Merger dated as of May 24,
1993, between AMAX and Cyprus Minerals Company, or otherwise 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
provided for or 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 with or involving
any Corporation other than AMAX or Cyprus Amax, or a reverse stock
split of any class of voting securities of the Company which results
in a de-facto change in voting control 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 percent 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 percent 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 [c], such
continuity of ownership (and preservation of relative voting power)
shall be deemed to be satisfied if the failure to meet such 75 percent
threshold (or to reserve such relative voting
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<PAGE>
power) is due solely to the acquisition of voting securities by an
employee 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 this Plan;
provided, however, that a Change in Control shall not be deemed to
have occurred if one of the following exceptions applies:
[i] Unless a majority of the Continuing Directors of the Company
determines that the exception set forth in this paragraph [i]
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: (A) 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");
(B) any employee benefit plan, or trustee or other fiduciary
thereof, maintained by the Company or any subsidiary of the
Company; (C) AMAX; (D) Cyprus Amax; (E) any subsidiary of the
Company; or (F) the Company.
[ii] Unless a majority of the Continuing Directors of the Company
determines that the exception set forth in this paragraph [ii]
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 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
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is a participant in a capacity other than solely as an officer, employee
or director of the Company.
2.10 "Code" means the Internal Revenue Code of 1986, as it presently is
constituted, as it may be amended, or any successor statute of similar purpose.
2.11 "Common Stock" means the Common Stock of the Company.
2.12 "Company" means AMAX Gold Inc., and any Affiliated Company that adopts this
Plan with the approval of the Board of Directors of AMAX Gold, Inc., or any
successor in interest resulting from merger, consolidation, or transfer of
substantially all of Company assets, that may expressly agree in writing to
continue this Plan.
2.13 "Company Contributions" means amounts contributed under the Plan by the
Company as provided in Article IV, including Company Matching Contributions.
2.14 "Company Matching Contributions" means amounts contributed by the Company
pursuant to Section 4.2[a].
2.15 "Compensation" means regular remuneration, determined under rules uniformly
applicable to all employees similarly situated, payable to a Participant for
services rendered to any one or more Employers, excluding additional or special
pay such as overtime, living and similar allowances and bonuses or other
incentive compensation, but including any Section 401(k) Contributions made on
behalf of the Participant under Section 4.1 and any reductions in a
Participant's remuneration pursuant to a cafeteria plan as described in Section
125 of the Code. Pursuant to Code Section 401(a)(17), Compensation taken into
account for all purposes under this Plan shall not exceed [A] $200,000 (as
adjusted by the Secretary of the Treasury for cost of living increases each
year) for any Plan Year ending prior to January 1, 1994, and [B] $150,000 (as
adjusted by the Secretary of the Treasury for cost of living increases each
year) for any Plan Year beginning on or after January 1, 1994. In determining
the Compensation of a Participant for purposes of the Code Section 401(a)(17)
limitation, the rules of Code Section 414(q)(6) will apply, except that the term
"family" will include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age 19 before the close of
the year. If, as a result of the application of the rules of Code Section
414(q)(6), the Code Section 401(a)(17) limitation is exceeded, then the
limitation shall be prorated among the affected individuals in proportion to
each such individual's Compensation, as determined above prior to the
application of the Code Section 401(a)(17) limitation. In addition, if
Compensation is determined for any period of fewer than 12 months, the Code
Section 401(a)(17) limitation will be multiplied by a fraction, the numerator of
which is the number of calendar months in the determination period and the
denominator of which is 12.
2.16 "Effective Date" means November 15, 1993. Effective Date of this amended
and restated plan means April 1, 1994. The "Effective Date" for any amendment
or restatement of this Plan and
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Trust will be the date stated in the amendment or restatement or in the
resolution or minutes of action adopting the amendment or restatement.
2.17 "Employee" means any person now or hereafter in the employ of the Company
excluding directors who are not employed by the Company in any other capacity,
independent contractors, and any Employee who is a leased employee or a self-
employed individual or owner-employee within the meaning of Code Section 401(c)
with respect to his employment with the Company.
2.18 "Eligible Employee" means an Employee who is a United States citizens or a
resident alien. Employees included in a unit of Employees covered by a
collective bargaining agreement between Employee representatives and the Company
if there is evidence that retirement benefits were the subject of good faith
bargaining between the Employee representative and the Company, are not Eligible
Employees.
2.19 "Employment Commencement Date" means the date on which an Employee first
performs an Hour of Service.
2.20 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
2.21 "Hour of Service" means:
[a] Each hour for which an employee is entitled to Compensation for the
performance of duties during the applicable computation period;
[b] Each hour for which an employee is entitled to Compensation on account of a
period of time during which no duties are performed (irrespective of
whether the employment relationship is terminated) due to vacation,
holiday, illness, incapacity (including disability), layoff, jury duty,
military duty, or leave of absence; and
[c] Each hour for which back pay, irrespective of mitigation of damages, either
was awarded or agreed to by the Company. An employee will be credited with
Hours of Service under this paragraph [c] when back pay is earned rather
than actually paid.
For purposes of paragraph [b] the following rules shall apply:
[1] No more than 501 hours will be credited to any employee on account of
a single continuous period during which the employee performs no
duties:
[2] An hour will not be credited on account of a period during which no
duties are performed if the payment for that hour is made or due under
a plan maintained solely for the purpose of complying with applicable
workmen's compensation, or unemployment compensation or disability
insurance laws;
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[3] Hours will not be credited for payments that reimburse an employee
solely for medical or medically related expenses incurred by the
employee; and
[4] A payment will be deemed to be made by or due from the Company
regardless of whether the payment is made by or due from the Company
directly, or indirectly through, among others, a Trust Fund or insurer
to which the Company contributes or pays premiums.
These rules also will apply to the extent that any back pay is agreed to or
awarded for a period of time during which an employee did not or would not have
performed duties.
For purposes of this Section, the same Hours of Service will not be credited
under both paragraphs [a] or [b] and also under paragraph [c]. Each Hour of
Service will be credited under this Section in accordance with 29 C.F.R. (S)
2530.200b-2(b) and (c).
Solely for purposes of determining whether a Break in Service for purposes of
participation or vesting has occurred, an Employee who is absent from work after
January 1, 1984 because of pregnancy of the Employee, birth of a child of the
Employee, placement of a child in connection with adoption of the child by the
Employee, or caring for a child of the Employee during the period immediately
following birth or placement for adoption, will be credited with the Hours of
Service that would have been credited had the absence not occurred with the
following restrictions: (i) if the Hours can not be determined the Employee will
be credited with 8 Hours of Service for each day of absence; and (ii) Hours will
be credited in the computation period in which the absence began if and only in
so far as required to prevent a Break in Service in that period and if not so
required then in the following period in so far as required to prevent a Break
in Service in that period. Credit will not be given if the Employee fails to
provide the Committee within 30 days of a request, any information about the
purpose or length of the absence requested by the Committee.
Hours of Service will be credited for employment with other members of an
affiliated service group (under Code Section 414(m)), a controlled group of
corporations (under Code Section 414(b)), or a group of trades or businesses
under common control (under Code Section 414(c)) of which the adopting employer
is a member, and any other entity required to be aggregated with the employer
pursuant to Code Section 414(o) and the regulations thereunder.
Hours of Service will also be credited for any individual considered an Employee
for purposes of this Plan under Code Section 414(n) or 414(o) and the
regulations thereunder.
2.22 "Key Employee" means an Employee or former Employee of the Company who, at
any time during the Plan Year or any of the four preceding Plan Years, is:
[a] an officer of the Company having an annual compensation greater than 50
percent of the dollar limitation in effect under Code Section 415(b)(1)(A)
for the Plan Year;
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<PAGE>
[b] one of the ten 10 employees, owning or considered to own under Code Section
318, the largest interests of the Company and having annual compensation in
excess of 100% of the dollar limitation in effect under Code Section
415(c)(1)(A);
[c] a five percent owner of the Company; or
[d] a one percent owner of the Company having an annual Compensation from the
Company of more than $150,000.
For purposes of paragraph [a], no more than 50 employees (or, if fewer, the
greater of 3 employees or 10 percent of the employees) will be treated as
officers. For purposes of paragraph [b], if two employees have the same
interest in the Company, the employee having greater annual Compensation from
the Company will be treated as having a larger interest. This paragraph will be
interpreted to conform with Code Section 416. For purposes of this definition,
"employee" will have the same meaning as it does under Code Section 416(i)(1).
Any Beneficiary of a Key Employee will be treated as a Key Employee. "Non-Key
Employee" means any Employee who is not a Key Employee under this Section.
Annual compensation means compensation as defined in Section 415(c)(3) of the
Code, but including amounts contributed by the employer pursuant to a salary
reduction agreement which are excludable from the employee's gross income under
Section 125, Section 402(e)(3), Section 402(h) or Section 403(b) of the Code.
The determination period is the plan year containing the determination date and
the 4 preceding plan years.
2.23 "Leased Employee" means any person (other than an employee of the
recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organizations) has performed services for the recipient (or for
the recipient and related persons determined in accordance with Section
414(n)(6) of the Code) on a substantially full time basis for a period of at
least one year, and such services are of a type historically performed by
employees in the business field of the recipient employer. Contributions or
benefits provided a leased employee by the leasing organization which are
attributable to services performed for the recipient employer shall be treated
as provided by the recipient employer.
A Leased Employee shall not be considered an employee of the recipient if: (i)
such employee is covered by a money purchase pension plan providing: (1) a non
integrated employer contribution rate of at least 10 percent of compensation, as
defined in Section 415(c)(3) of the Code, but including amounts contributed by
the employer pursuant to a salary reduction agreement which are excludable from
the employee's gross income under Section 125, Section 402(e)(3), Section 402(h)
or Section 403(b) of the Code, (2) immediate participation, and (3) full and
immediate vesting; and (ii) lease employees do not constitute more than 20
percent of the recipient's non highly compensated work force.
2.24 "Normal Retirement Age" means age 65 for this Plan.
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2.25 "Participant" means any Employee who has become a Participant under this
Plan. Participation will cease upon distribution of a Participant's entire
vested Account and forfeiture of a Participant's entire non vested Account after
Termination of Employment.
2.26 "Pension Plan" means the AMAX Inc. Defined Contribution Pension Plan for
Salaried Employees.
2.27 "Period of Contribution" means a period beginning on the date an Employee
first begins to make tax deferred or after-tax contributions to the Plan and
ends on the date a Period of Severance begins. A period during which
Participant is on a paid leave of absence, the terms of which specifically
provide for that individual to be treated as an active employee, will be
included in that Participant's Period of Contribution.
2.28 "Period of Severance" for purposes of vesting means a period beginning on
or after January 1, 1991, on the date an Employee quits, retires, or is
discharged or the first anniversary of the date an Employee Terminates
Employment for any other reason and ending on the Participant's Reemployment
Commencement Date; provided, however, that if an Employee Terminates Employment
for any other reason and quits, retires, or is discharged within 12 months, the
Period of Severance begins on the first day of absence. Solely for purposes of
determining whether a Period of Severance for vesting purposes has occurred, the
12-consecutive month period beginning on the first anniversary of the first day
of an absence beginning on or after January 1, 1991, will not constitute a
Period of Severance if the Employee is absent from work because of pregnancy of
the Employee, birth of a child of the Employee, placement of a child in
connection with adoption of the child by the Employee, or caring for a child of
the Employee during the period immediately following birth or placement for
adoption. This exception will not apply if the Employee fails to provide to the
Plan Administrator within 30 days of request, any information about the purpose
or length of the absence requested by the Plan Administrator.
If the employer is a member of an affiliated service group (under Section
414(m)), a controlled group of corporations (under Section 414(b)), or a group
of trades or businesses under common control (under Section 414(c)) or any other
entity required to be aggregated with the employer pursuant to Section 414(o)
and the regulations thereunder, service will be credited for any employment for
any period of time for any other member of such group. Service will also be
credited for any individual required under Section 414(n) or considered an
employee of any employer aggregated under Section 414(b), (c), or (m).
2.29 "Period of Vesting Service" means a period beginning on the later of
January 1, 1991, or an Employee's Employment or Reemployment Commencement Date
and ending on the date a Period of Severance begins. "Period of Vesting
Service" shall also include one year for each Vesting Computation Period ending
on or before December 31, 1991, during which the Participant is credited with
1,000 or more Hours of Service. Vesting Service for the Vesting Computation
Period ending in 1991 shall be the greater of the Period of Vesting Service
credited on the basis of Hours of Service or credited on the basis of the
elapsed time rule in effect after January 1, 1991. A Participant's
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Period of Vesting Service shall in no event be less than the Participant's
Period of Vesting Service under the terms of the Plan as in effect as of the
Effective Date of this Amended and Restated Plan. Unless otherwise specified
in the instrument of participation, contiguous employment with an Affiliated
Company will be considered employment with the Company for purposes of
computing vesting service.
2.30 "Permanent Layoff" means Termination of Employment by reason of the
permanent shutdown of a plant, mine, laboratory, department or subdivision
thereof or by reason of a staff reduction caused by economic conditions,
business conditions, merger, acquisition, divestiture, unit shutdown or
department consolidation.
2.31 "Plan" means the Plan maintained under this document and all subsequent
amendments to it.
2.32 "Plan Administrator" means the Thrift Plan Committee appointed by the Board
of Directors whose duties are specified in this Plan.
2.33 "Plan Year" means the fiscal (taxable) year of the Company, which, as
presently established, commences on January 1 of each year, and this will be the
fiscal (taxable) year of the Trust established under this Plan. If there is a
change in the Company's fiscal year, "Plan Year" will mean the Company's new
fiscal year, and any short fiscal year resulting from a change will be
considered a full year for all purposes of this Plan. The period from the
Effective Date of this Plan to December 31, 1993, shall be a full Plan Year for
all purposes of this Plan.
2.34 "Portfolio Review Committee" or Portfolio Committee" or "Employee Benefit
Portfolio Review Committee" means the Committee appointed by the Board of
Directors whose duties are described in Section 10.3.
2.35 "Reemployment Commencement Date" means the date on which an Employee first
performs an Hour of Service after a Period of Severance.
2.36 "Retirement" means [a] retirement of a Participant from the employment of
the Company or a Non-Participating Subsidiary, with a pension (whether immediate
or deferred but not including a vested termination retirement allowance) under
any retirement plan of any Affiliated Company, or [b] regardless of eligibility
for a pension, Termination of Employment at any time on or after a Participant's
Normal Retirement Date.
2.37 "Super Top Heavy Plan" means a Plan in which the aggregate value of the
Accounts of Key Employees under the Plan exceeds 90 percent of the aggregate
value of the Accounts of all Participants under the Plan (as of the
Determination Date for the Plan Year), excluding the value of Accounts of former
Key Employees. For purposes of this Section, the value of Accounts of
Participants will be increased by the aggregate amount of distributions made
with respect to Participants during the five-year period ending on the
Determination Date. "Determination Date"
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means, with respect to any Plan Year, the last day of the preceding Plan Year
(or in the case of the first Plan Year, the last day of that Plan Year). This
paragraph will be interpreted to conform with Code Section 416.
2.38 "Termination of Employment" or "Terminates Employment" means termination of
the employer-employee relationship between an Employee and the Company for any
reason. Transfer to employment with an Affiliated Company that does not
maintain this Plan (a "Non-Participating Subsidiary") will not be considered a
Termination of Employment. Transfer to employment in a class of Employees that
are not Eligible Employees, as described in Section 2.18, shall not be treated
as a Termination of Employment.
2.39 "Thrift Plan Committee" or "Committee" means the Committee appointed as
Plan Administrator by the Board of Directors whose duties are specified in this
Plan.
2.40 "Top Heavy Plan" means a Plan in which the aggregate value of the Accounts
of Key Employees under the Plan exceeds 60 percent of the aggregate value of the
Accounts of all Participants under the Plan (as of the Determination Date for
the Plan Air), excluding the value of Accounts of former Key Employees. For
purposes of this Section, the Accounts of Participants will be increased by the
aggregate amount of distributions made with respect to Participants during the
five-year period ending on the Determination Date. Benefits will not be taken
into account in determining the top heavy ratio for any Participant who has not
performed services for the Company during the last five-year period ending on
the Determination Date. "Determination Date" means, with respect to any Plan
Year, the last day of the preceding Plan Year (or in the case of the first Plan
Year, the last day of that Plan Year). This paragraph will be interpreted to
conform with Code Section 416. For purposes of determining whether this and any
aggregated plans are Top Heavy or Super Top Heavy, all defined benefit and
defined contribution plans (including any simplified employee pension plan)
maintained or ever maintained by the Company in which a Key Employee
participates or on which any plan in which a Key Employee participates depends
for qualification under Code Sections 401(a)(4) or 410 must be aggregated.
Other plans maintained or ever maintained by the Company may be aggregated if,
when considered as a group with the plans that must be aggregated, they would
continue to satisfy the requirements of Code Sections 401 (a)(4) and 410.
2.41 "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 the Committee on the basis of
information supplied 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 Non-Participating Subsidiary shall be deemed to be
totally and permanently disabled under the Plan.
2.42 "Trustee" means the person or persons appointed by the Board of Directors
as the Trustee of the Trust agreement entered into by the Company for the
purpose of holding the assets of the Plan.
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2.43 "Trust Fund" means the assets of the Trust Fund established to hold the
assets of this Plan.
2.44 "Valuation Date" means each business day on which the Plan's recordkeeper
is open for business.
ARTICLE III
PARTICIPATION
3.1 WHO MAY BECOME A PARTICIPANT: Any Eligible Employee who is an Eligible
----------------------------
Employee on the Effective Date will become a Participant on the Effective Date
of this Plan. Any other or new Employee will become a Participant as of the
first day of the calendar month next following the Employee's Employment
Commencement Date provided the Employee must be an Eligible Employee when he
becomes a Participant. Any Eligible Employee who is a Participant will continue
to be a Participant upon restatement or amendment of the Plan, unless the
restatement or amendment specifically excludes the Employee from participation.
3.2 DETERMINATION OF PARTICIPANTS: The Committee will determine when
-----------------------------
Employees become eligible to participate and will provide enrollment forms to
Eligible Employees when they become eligible to participate. An Eligible
Employee may enroll during the designated enrollment period nearest the date he
first becomes eligible to participate or as of the first day of any subsequent
calendar month by filing the completed enrollment forms with the Committee
during the designated enrollment period before the effective date of his
participation.
3.3 PARTICIPATION UPON REEMPLOYMENT: An Eligible Employee or former
-------------------------------
Participant may become a Participant upon his reemployment as an Employee or
transfer to an eligible class of Employees as described in Section 2.18 as soon
as the Employee completes the appropriate enrollment materials during the
designated enrollment period.
3.4 TERMINATION OF PARTICIPATION: A Participant who ceases to be an
----------------------------
Eligible Employee shall cease to be a contributor to the Plan but, until
Termination of Employment, shall continue to be a Participant for all other
purposes of the Plan so long as there is a balance in the Participant's Account.
A person shall cease to be a Participant when there is no balance in the
Participant's Account.
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ARTICLE IV
CONTRIBUTIONS
4.1 PARTICIPANT CONTRIBUTIONS:
-------------------------
[a] Rate of Participant Contributions: As a condition of eligibility to share
---------------------------------
in Company Matching Contributions, a Participant must elect to make matched
contributions to this Plan of up to a total of 6% of Compensation (in whole
percentage increments). Each Participant may also elect to make unmatched
contributions of up to 10% of Compensation, provided, however, that the
total of matched and unmatched contributions may not exceed 16% of
Compensation.
[b] Participant Contribution Elections: At the Participants' election, such
----------------------------------
contributions 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
Fund by the Company monthly.
[c] Change of Participant Contributions: A Participant may change the rate of
-----------------------------------
contributions prospectively, but not retroactively, by filing a revised
Participant contribution form with the Committee. The rate of after-tax
contributions may be changed not more frequently than once in any calendar
month by filing a revised form with the Committee by the 15th day of the
next preceding month. The rate of tax deferred salary reduction
contributions may be changed effective for the first pay period commencing
in the following month by filing a revised form with the Committee by the
15th day of the preceding month.
In the event it becomes necessary for Highly Compensated Employees to
change the rate of contributions, as set forth in Section 4.3, the Highly
Compensated Employee shall be permitted to do so in a manner deemed by the
Committee to be administratively feasible.
In the event that the Committee, or its designee, deems it necessary to
require Highly Compensated Employees to change the rate of contributions
because of the likelihood of exceeding the limitations set forth in Section
4.3, the Highly Compensated Employees shall be required to do so, after
appropriate notice, in a manner deemed by the Committee to be
administratively feasible.
[d] Suspension of Participant Contributions: A Participant may suspend or
---------------------------------------
resume after-tax or tax deferred contributions by filing with the Committee
a written election on the form provided by the Committee. After-tax or tax
deferred contributions may be suspended or
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resumed monthly by filing a written election on the form provided by the
Committee by the 15th day of the next preceding month.
[e] Nonforfeitability of Participant Contributions: All Participant
----------------------------------------------
contributions are nonforfeitable at all times.
[f] Limit on After-Tax Contributions: For each Plan Year, the total of a
--------------------------------
Participant's after-tax contributions to this and any other qualified plan
maintained by the Company may not exceed 16% of the Participant's
Compensation for the Plan Year.
[g] Limit on Tax Deferred Contributions: For each Plan Year, the total of a
-----------------------------------
Participant's tax deferred contributions to this and any other qualified
plan maintained by the Company may not exceed 16% of the Participant's
Compensation for the Plan Year, or, if less, $7,000 (as adjusted for cost
of living increases by the Secretary of the Treasury as of each January 1).
[h] Aggregate Limits on Participant Contributions: Subject to the adjusted
---------------------------------------------
$7,000 per year limit on tax deferred contributions, a Participant may make
matched contributions to this Plan of up to 6% of Compensation on a tax-
deferred basis or after tax; however, the total of his matched
contributions may not exceed 6% of Compensation. Subject to the adjusted
$7,000 per year limit on tax deferred contributions, a Participant may make
unmatched contributions to this Plan of up to 10% of Compensation on an
after-tax basis and may make unmatched contributions of up to 10% of
Compensation on a tax deferred basis. The sum of his unmatched
contributions may not exceed 10% of Compensation. The sum of his
unmatched and matched contributions may not exceed 16% of Compensation.
Moreover, the sum of a Participant's matched contributions (on both a pre-
tax and after-tax basis) and his unmatched contributions (on both a pre-tax
and after-tax basis) may not exceed 16% of Compensation. Contributions
shall be made in whole percentage increments of Compensation.
4.2 COMPANY CONTRIBUTIONS:
---------------------
[a] Company Contributions:
---------------------
[1] The Company will pay into the Trust Fund monthly an amount equal to 75%
of the matched contributions of up to 6% of his Compensation made by each
Participant. Forfeitures will be applied to offset Company Matching
Contributions under this Clause 4.2[a][2].
[2] In addition, the Company may at its discretion make additional Company
Matching Contributions to be allocated among the accounts of Eligible
Employees who are not Highly Compensated Employees.
[b] Restrictions on Company Contributions: The amount of Company Contributions
-------------------------------------
plus tax deferred salary reduction contributions:
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[1] may not exceed 15% of the aggregate Compensation of all Participants
eligible to share in Company Contributions under this Plan in the year
for which the contribution is being determined;
[2] may not exceed the annual addition limitations of the Code; and
[3] may be made in cash or in qualifying employer securities.
4.3 CONTRIBUTION LIMITATIONS:
------------------------
[a] Limitations: Notwithstanding the provisions of Sections 4.1 and 4.2 above,
-----------
Participant tax deferred and after-tax contributions, and Company Matching
Contributions to this and any other qualified plan maintained by the
Company or any Affiliated Company are subject to the following limitations:
[1] Actual Deferral Percentage Test: Actual Deferral Percentage for
-------------------------------
Highly Compensated Employees for each Plan Year must be no greater
than 1.25 times the Actual Deferral Percentage for all other
Participants for that Plan Year; or alternatively, the Actual Deferral
Percentage for Highly Compensated Employees may be two times the
Actual Deferral Percentage for all other Participants if the Actual
Deferral Percentage for Highly Compensated Employees is not more than
two percentage points higher than the Actual Deferral Percentage for
all other Participants for that Plan Year.
(A) The Actual Deferral Percentage for the Plan Year for any Highly
Compensated Employee who is eligible to have Elective Deferrals
and Deemed Elective Deferrals allocated to his Account under two
or more arrangements described in Code Section 401(k) that are
maintained by the Company will be determined as if they were made
under a single arrangement. If a Highly Compensated Employee
participates in two or more cash or deferred arrangements that
have different Plan Years, all cash or deferred arrangements
ending with or within the same calendar year will be treated as a
single arrangement.
(B) If this Plan satisfies the requirements of Code Sections 401(k),
401(a)(4), or 410(b) only if aggregated with one or more other
plans, or if one of more other plans satisfy the requirements of
such Code Sections only if aggregated with this Plan, then this
section will be applied by determining the Actual Deferral
Percentage of Participants as if all such plans were a single
plan. For Plan Years beginning after December 31, 1989, plans
may be aggregated in order to satisfy Code Section 401(k) only if
they have the same Plan Year.
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(C) The Actual Deferral Percentage of a Participant who is a five
percent owner or one of the ten most Highly Compensated
Employees, will include the Elective Deferrals, Deemed Elective
Deferrals, and Compensation of such Participant and the Elective
Deferrals, Deemed Elective Deferrals and Compensation for the
Plan Year of any family members, as defined in Code Section
414(q)(6). Family members of Highly Compensated Employees will
be disregarded as separate Employees.
(D) For purposes of the Actual Deferral Percentage Test, Elective
Deferrals, Qualified Non-elective Contributions, and Qualified
Matching Contributions must be made before the last day of the
twelve-month period immediately following the Plan Year to which
such contributions relate.
(E) The Company will maintain records sufficient to demonstrate
satisfaction of the Actual Deferral Percentage Test and the
amount of Qualified Non-elective Contributions or Qualified
Matching Contributions, or both, used in such test.
[2] Average Contribution Percentage Test:
------------------------------------
(A) The Average Contribution Percentage for Highly Compensated
Employees for each Plan Year must be no greater than 1.25 times
the Average Contribution Percentage for all other Participants
for that Plan Year; or alternatively, the Average Contribution
Percentage for Highly Compensated Employees may be two times the
Average Contribution Percentage for all other Participants if the
Average Contribution Percentage for Highly Compensated Employees
is not more than two percentage points higher than the Average
Contribution Percentage for all other Participants for that Plan
Year.
(B) The Average Contribution Percentage for the Plan Year for any
Highly Compensated Employee who is eligible to have contribution
percentage amounts allocated to his Account under two or more
arrangements described in Code Section 401(k) that are maintained
by the Company will be determined as if such contribution
percentage amounts were made under a single arrangement. If a
Highly Compensated Employee participates in two or more cash or
deferred arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same calendar
year will be treated as a single arrangements.
(C) If this Plan satisfies the requirements of Code Sections 401(m),
401(a)(4), or 410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of
such Code Sections only if aggregated
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with this Plan, then this section will be applied by
determining the contribution percentage of Participants as if
all such plans were a single plan. For Plan Years beginning
after December 31, 1989, plans may be aggregated in order to
satisfy Code Section 401(m) only if they have the same Plan
Year.
(D) The contribution percentage and Compensation of a Participant who
is a five percent owner or one of the ten most Highly Compensated
Employees, will include the contribution percentage amounts and
Compensation for the Plan Year of any family members, as defined
in Code Section 414(q)(6). Family members of such Highly
Compensated Employees will be disregarded as separate Employees.
(E) For purposes of the contribution percentage test, Participant
contributions are considered to have been made in the Plan Year
in which contributed to the Trust. Matching Contributions and
Qualified Non-elective Contributions will be considered made for
a Plan Year if made no later than the end of the twelve-month
period beginning on the day after the close of the Plan Year. A
Matching Contribution (including a Qualified Matching
Contribution) that is forfeited to correct excess aggregate
contributions, or because it is attributable to an excess
contribution or excess deferral will not be taken into account
for purposes of determining the contribution percentage test.
(F) The Company will maintain records sufficient to demonstrate
satisfaction of the average contribution percentage test and the
amount of Qualified Non-elective Contributions or Qualified
Matching Contributions, or both, used in such test.
[3] Multiple Use: If one or more Highly Compensated Employees participate
------------
in both a cash or deferred arrangement and a plan subject to the
Average Contribution Percentage test maintained by the Company and the
sum of the Actual Deferral Percentage and Average Contribution
Percentage of Highly Compensated Employees subject to either or both
tests exceeds the Aggregate Limit, then the Average Contribution
Percentage of those Highly Compensated Employees who also participate
in a cash or deferred arrangement will be reduced (beginning with the
Highly Compensated Employee whose Average Contribution Percentage is
the highest) so that the aggregate limit is not exceeded. The amount
by which each Highly Compensated Employee's contribution percentage
amount is reduced will be treated as an excess aggregate contribution.
The Actual Deferral Percentage and Average Contribution Percentage of
the Highly Compensated Employees are determined after any corrections
required to meet the Actual Deferral Percentage and Average
Contribution Percentage Tests. Multiple use does not occur if both
the actual deferral percentage and the average contribution percentage
of the highly
-17-
<PAGE>
Compensated Employees do not exceed 1.25 times the actual deferral
percentage and average contribution percentage of the non-Highly
Compensated Employees.
[4] Excess Contributions:
--------------------
(A) Excess Tax Deferred Contributions:
---------------------------------
(i) Assignment of Excess Tax Deferred Contributions: A
-----------------------------------------------
Participant who has made contributions to 2 or more 401(k)
plans may designate as made to this Plan any Excess Tax
Deferred Contributions made during the taxable year of the
Participant by notifying the Committee on or before March
15 of the following year of the amount of the Excess Tax
Deferred Contributions to be assigned to the Plan. A
Participant is deemed to have notified the Committee of
any Excess Tax Deferred Contributions that arise by
taking into account only Tax Deferred contributions made
to this Plan.
(ii) Distribution of Excess Tax Deferred Contributions:
-------------------------------------------------
Notwithstanding any other provision of the Plan, Excess Tax
Deferred Contributions, plus any allocable income and minus
any allocable loss, will be distributed no later than April
15 to any Participant to whose Account Excess Tax Deferred
Contributions were made or assigned for the preceding year,
and who claims or is deemed to have notified the Committee
of Excess Tax Deferred Contributions for such year.
(iii) Income or Loss: Excess Tax Deferred Contributions will be
--------------
adjusted by the amount of any income or loss allocable to
the Participant's Tax Deferred Savings Accounts for the
taxable year multiplied by a fraction, the numerator of
which is such Participant's Account balance attributable
to Tax Deferred Contributions without regard to any
income or loss occurring during such taxable year.
(B) Distribution of Excess Aggregate Contributions: An excess
----------------------------------------------
aggregate contribution is the excess, in any Plan Year, of the
aggregate contribution percentage amounts taken into account in
determining the numerator of the Average Contribution Percentage
actually made on behalf of Highly Compensated Employees over the
maximum contribution percentage amounts permitted by the Average
Contribution Percentage test, determined by reducing
contributions made on behalf of Highly Compensated Employees
beginning with the Highly Compensated Employee with the highest
contribution percentage. In the event that excess aggregate
contributions are made for any Plan Year, the Committee will
distribute the excess aggregate contributions in the same manner
as excess contributions are distributed, as
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<PAGE>
provided in Section 4.3(a)(4)(C) of this Plan. Income and
losses attributable to excess aggregate contributions will be
determined and distributed along with the excess aggregate
contributions in the manner provided in Section 4.3(a)(4)(C)]
of this Plan.
(C) Return of Excess Contributions:
------------------------------
(i) Excess Contributions: An excess contribution is the
--------------------
excess, in any Plan Year, of the aggregate amount of
contributions actually taken into account in determining
the Actual Deferral Percentage for Highly Compensated
Employees over the maximum amount of such contributions
permitted by the Actual Deferral test, determined by
reducing contributions made on behalf of Highly
Compensated Employees beginning with the Highly
Compensated Employee with the highest Actual Deferral
Percentage.
(ii) Distribution of Excess Contributions: In the event that
------------------------------------
excess contributions are made for any Plan Year, the
Committee will distribute the excess contributions in
accordance with this paragraph. on or before the 15th day
of the third month following the end of each Plan Year, but
in no event later than the close of the following Plan
Year.
(iii) Income and Loss: Each Highly Compensated Employee will
---------------
have his or her portion of the excess contribution,
adjusted for any income or loss allocable to such
portion, distributed to him.
(iv) Family Members: Excess contributions of Participants who
--------------
are subject to the family member aggregation rules shall be
allocated among the family members in proportion to the
Elective Deferrals (and amounts treated as Elective
Deferrals) of each family member that are combined to
determine the combined Actual Deferral Percentage. The
income or loss attributable to excess contributions is the
income or loss for the Plan Year allocable to the
Participant's Tax Deferred Savings Account (and any deemed
Elective Deferrals allocated to the participant's
Account) multiplied by a fraction, the numerator of which
is the Participant's excess contributions for the Plan
Year and the denominator of which is the Participant's
Account balance attributable to Elective Deferrals (and
deemed Elective Deferrals), without regard to any income
or losses allocable to such contributions for the Plan
Year. Alternatively, in the discretion of the Committee,
income allocable to the Participant's excess elective
-19-
<PAGE>
deferrals may be determined under any reasonable method
used by the Plan for allocating income on Plan assets.
(v) Order of Distribution: Excess contributions will be
---------------------
distributed from the Participant's Tax Deferred Savings
Account and Qualified Matching Contributions Account, if
applicable, in proportion to the Participant's Elective
Deferrals and Qualified Matching Contributions (to the
extent used in the Actual Deferral Percentage test) for the
Plan Year. Excess contributions will be distributed from
the Participant's Qualified Non-elective Contribution
Account only to the extent that such excess contributions
exceed the balance in the Participant's elective deferral
Account and qualified matching contributions account. If
excess contributions are not distributed by the 15th day of
the third month following the end of the Plan Year in which
such excess contributions arose, a ten percent excise tax
will be imposed on the Company with respect to such excess
contributions.
(D) Forfeitures of Matching Contributions: Matching Contributions
-------------------------------------
attributable to excess contributions that are distributed to a
Participant shall be forfeited as of the distribution date of the
excess contribution.
(E) Qualified Non-Elective Contributions: In lieu of distributing
------------------------------------
excess contributions as provided in Section 4.3(a)(4)(C) or
excess aggregate contributions as provided in Section
4.3(a)(4)(B), the Company, in its discretion, may make Qualified
Non-elective Contributions, on behalf of all Participants or all
Participants who are non-Highly Compensated Employees, that are
sufficient to satisfy either the Actual Deferral Percentage test
or the Average Contribution Percentage test, or both, pursuant to
regulations under the Code. "Qualified Non-Elective
Contributions" means contributions (other than Matching
Contributions or Qualified Matching Contributions) made by the
Company and allocated to Participants' Accounts that the
Participants may not elect to receive in cash until distributed
from the Plan, that are nonforfeitable when made, and that are
distributable only in accordance with the distribution provisions
that are applicable to Elective Deferrals and Qualified Matching
Contributions.
(F) Recharacterization of Excess Contributions: A Participant may
------------------------------------------
elect to treat his excess contributions as an amount distributed
to the Participant and then contributed by the Participant to the
Plan to the extent that recharacterized excess contributions in
combination with other Participant contributions made under the
Plan do not exceed the limitations on Participant contributions
provided in the Plan, including the Average Contribution
Percentage limitation. Recharacterized amounts will be
nonforfeitable and
-20-
<PAGE>
will be subject to the distribution and withdrawal restrictions
imposed on elective deferrals. Amounts may not be
recharacterized by a Highly Compensated Employee to the extent
that such amount, along with any other after-tax contributions,
will exceed the limits on after-tax contributions provided in
Section 4.1[f] of the Plan. Recharacterization must occur
within two and one-half months after the close of the Plan Year
in which such excess contributions arose and recharacterization
is deemed to occur no earlier than the date the last Highly
Compensated Employee is provided written notification of the
amount recharacterized and the consequences of such
recharacterization. Recharacterized amounts will be taxable to
the Participant in the Participant's taxable year in which the
Participant would have received such amounts in cash but for
the elective deferral.
[b] Annual Additions: Excess Tax Deferred Contributions, excess contributions,
----------------
and excess aggregate contributions, whether or not returned to the
Participant, will be treated as Annual Additions under Section 4.4.
[c] Definitions:
-----------
[1] The "Actual Deferral Percentage" for a specified group of Participants
for a Plan Year means the average of the ratios (calculated separately
for each Participant in the group) of the amount of Tax Deferred
Contributions under this Plan on behalf of each such Participant for
the Plan Year to the Participant's Compensation for the entire Plan
Year (whether or not the Participant was a Participant for the entire
Plan Year) or for the portion of such Plan Year during which the
Employee was a Participant, as determined by the Committee for such
Plan Year so long as such determination is applied uniformly to
Participants under the Plan for such Plan Year. Company contributions
on behalf of any Participant include [i] any Elective Deferrals made
pursuant to the Participant's deferral election, including Excess
Elective Deferrals, but excluding Elective Deferrals that are taken
into account in the Average Contribution Percentage test (provided the
Actual Deferral Percentage test is satisfied both with and without
exclusion of these Elective Deferrals); and [ii] in the discretion of
the Company, all Qualified Non-elective Contributions or any Qualified
Non-elective Contributions necessary to meet the Actual Deferral
Percentage test and all Qualified Matching Contributions or any
Qualified Matching Contributions necessary to meet the Actual Deferral
Percentage test. For purposes of computing Actual Deferral
Percentages, an Employee who would be a Participant but has not made
Elective Deferrals will be treated as a Participant on whose behalf no
Elective Deferrals are made.
[2] "Aggregate Limit" means the greater of:
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<PAGE>
[A] the sum of [i] 1.25 times the greater of the Actual Deferral
Percentage of non-Highly Compensated Employees for the Plan Year or
the Average Contribution Percentage of non-Highly Compensated
Employees for the Plan Year; and [ii] the lesser of two times or two
plus the lesser of the Actual Deferral Percentage or Average
Contribution Percentage; or
[B] the sum of [i] 1.25 times the lesser of the Actual Deferral
Percentage of non-Highly Compensated Employees for the Plan Year or
the Average Contribution Percentage of non-Highly Compensated
Employees for the Plan Year; and [ii] the lesser of two times or two
plus the greater of such Actual Deferral Percentage or Average
Contribution Percentage.
[3] The "Average Contribution Percentage" for a specified group of
Participants for a Plan Year is the average of the ratios (calculated
separately for each Participant in such group) of the sum of the
Participant contributions, Matching Contributions, and Qualified
Matching Contributions (to the extent such contributions are not taken
into account for purposes of the actual deferral percentage test) made
on behalf of the Participant for the Plan Year to the Participant's
Compensation for the entire Plan Year (whether or not the Participant
was a Participant for the entire Plan Year) or for the portion of the
Plan Year during which the Employer was a Participant in the Plan, as
determined by the Committee for such Plan Year so long as such
determination is applied uniformly to all Participants under the Plan
for such Plan Year. Matching and Qualified Matching Contributions on
behalf of any Participant in any Plan Year include [i] in the
discretion of the Company, all Qualified Non-elective Contributions or
such Qualified Non-elective Contributions as are necessary to meet the
Average Contribution Percentage test; and [ii] in the discretion of
the Company, all Elective Deferrals made pursuant to the Participant's
deferral election or such Elective Deferrals as are necessary to meet
the Average Contribution Percentage test (provided that the Actual
Deferral Percentage test is satisfied both with and without the
exclusion of these Elective Deferrals). Such contribution percentage
amounts shall not include Matching Contributions that are forfeited
either to correct excess aggregate contributions or because the
contributions to which they relate are Excess Deferrals, excess
contributions or excess aggregate contributions.
[4] "Compensation" for purposes of Section 4.3 only, will mean
compensation as defined in Code Section 414(s) and the regulations
thereunder, under rules applied uniformally to all Participants.
[5] "Deemed Elective Deferrals" means Qualified Non-Elective Contributions
or Qualified Matching Contributions, or both that are treated as
Elective Deferrals for purposes of the Actual Deferral Percentage
Test.
-22-
<PAGE>
[6] "Elective Deferrals" means any Company contributions made to the Plan
at the election of the Participant in lieu of cash compensation,
including contributions made pursuant to a salary reduction agreement
or other deferral arrangement. A Participant's Elective Deferrals in
any calendar year are the sum of all Company contributions made on
behalf of such Participant pursuant to an election to defer under any
arrangement described in Code Section 401(k), any simplified employee
pension cash or deferred arrangement described in Code Section
402(h)(1)(B), any eligible deferred compensation plan under Code
Section 457, any plan as described in Code Section 501(c)(18), and any
Company contributions made on behalf of a Participant pursuant to a
salary reduction agreement for the purchase of an annuity contract
under Code Section 403(b).
[7] "Excess Tax Deferred Contributions" means Tax Deferred Contributions
includible in a Participant's gross income under Code Section 402(g)
to the extent the Participant's Tax Deferred Contributions for a
taxable year exceed the dollar limitations under Code Section 402(g)
(as adjusted for increases in the cost of living.)
[8] "Highly Compensated Employee" means any Employee or former Employee
who, during the Plan, or on the preceding Plan Year:
[a] was at any time a five percent owner;
[b] received annual Compensation from the Company in excess of
$75,000, as adjusted for increases in the cost of living;
[c] received annual Compensation from the Company in excess of
$50,000, as adjusted for increases in the cost of living, and was in
the top-paid group of Employees for the Plan Year. An Employee is in
the top-paid group of Employees for any Plan Year if such Employee is
in the group consisting of the top twenty percent (20%) of the
Employees when ranked on the basis of Compensation paid during the
Plan Year; or
[d] was at any time an officer of the Company and received
Compensation greater than 50% of the dollar limitation in effect under
Code Section 415(b)(1)(A), as adjusted for increases in the cost of
living.
In determining which Employees are Highly Compensated Employees, an
Employee not described in paragraphs [b], [c] or [d] above for the
preceding year will not be treated as falling under the categories
described in paragraphs [b], [c] or [d] for the current year unless
such Employee is in the group consisting of the 100 Employees with the
highest Compensation from the Company in the current year. The
Company may adopt any reasonable, nondiscriminatory tie-breaking or
rounding rules necessary to determine which Employees are Highly
Compensated Employees,
-23-
<PAGE>
provided that such rules are uniformly and consistently applied. If
no officer has satisfied the Compensation requirement of paragraph
[d] above during the Plan Year, the highest paid officer for such
year will be treated as a Highly Compensated Employee, unless
otherwise provided by regulations.
In determining an individual's Compensation under this Section,
Compensation from each Company required to be aggregated under Code
Sections 414(b), (c), (m), and (o) will be taken into account. For
purposes of this Section, the determination of Compensation will be
made without regard to Code Sections 125, 402(a)(8), 402(h)(1)(B),
and, in the case of Company contributions made pursuant to a salary
reduction agreement, without regard to Code Section 403(b).
A former Employee will be treated as a Highly Compensated Employee if
such Employee separated from service (or was deemed to have separated)
prior to the Plan Year, performs no service for the Company during the
Plan Year, and was a Highly Compensated Employee for either the
separation year or any Plan Year ending on or after the Employee's
55th birthday.
If, during the Plan Year or the preceding Plan Year, an Employee is a
family member of either [1] a five percent owner who is an Employee or
former Employee; or [2] a Highly Compensated Employee who is one of
the ten most Highly Compensated Employees ranked on the basis of
Compensation paid by the Company during such year, then the family
member and the five percent owner or top-ten Highly Compensated
Employee will be treated as one Employee receiving Compensation and
Plan contributions equal to the sum of such Compensation and
contributions of both individuals. For purposes of this Section, a
family member includes the spouse, lineal ascendants and descendants
of the Employee or former Employee, and the spouses of such lineal
ascendants and descendants.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of Employees in the top-
paid group, the top 100 Employees, the number of Employees treated as
officers, and the Compensation that is considered, will be made in
accordance with Code Section 414(q).
[9] "Matching Contribution" means a Company contribution made to this or
any other defined contribution plan on behalf of a Participant on
account of a Participant contribution made by such Participant, or on
account of a Participant's Elective Deferral, under a Plan maintained
by the Company.
[10] "Participant Contribution" means any contribution made to the Plan by
or on behalf of a Participant that is included in the Participant's
gross income in the year in which
-24-
<PAGE>
made and that is maintained under a separate Account to which
earnings and losses are allocated.
4.4 LIMITATION ON ANNUAL ADDITION: For purposes of this Section, annual
-----------------------------
additions include Company Contributions and Participant tax deferred and after-
tax contributions, forfeitures, amounts allocated to an individual medical
account, as defined in Code Section 415(1)(2), that is part of a pension annuity
plan maintained by the Company and amounts attributable to post-retirement
medical benefits that are allocated to the separate account of a Key Employee.
Annual additions shall not include (i) any contribution made by a Participant
which qualifies under law as a rollover contribution or direct transfer, or (ii)
any forfeitures or Company Contributions which are described in Section
415(c)(6) of the Code. For purposes of applying this limitation, the annual
limitation year is the Plan Year. If the annual addition to the Account of any
Participant, attributable to all defined contribution plans (including money
purchase pension plans or profit-sharing plans of the Company), would exceed
either $30,000 (as adjusted for cost of living increases by the Secretary of the
Treasury as of each January 1 after 1988 for any limitation year ending during
the calendar year) or 25% of a Participant's compensation, the excess amount
will be disposed of in the following order:
[a] First, unmatched Participant after-tax contributions to the extent that the
return would reduce the excess amount, will be returned to the Participant.
[b] Second, any matched Participant after-tax contributions to the extent the
return would reduce the excess amount, will be returned to the Participant
with any matching Company contributions reduced as a consequence allocated
under subsections [d] or [e].
[c] Third, any Company Contributions to the extent the reduction would reduce
the excess amount will be allocated under subsections [d] or [e].
[d] The amount of any excess attributable to Company Contributions will be
applied to offset Company Matching Contributions for the next limitation
year, and each succeeding limitation year as necessary; and
[e] To the extent that the excess amounts described in subparagraph [d] above
cannot be applied to offset Company Matching Contributions, the excess
amounts will be allocated to the suspense account under Section 5.3 and
applied to offset Company Matching Contributions in succeeding limitation
years as necessary.
For purposes of limiting annual additions under this Section and combined
benefits and contributions under Section 4.5, Compensation means wages for
federal tax withholding purposes, as defined in 3401(a) of the Code, but
determined without regard to any rules that limit remuneration included in wages
based on the nature or location of employment or the services performed.
Compensation for a limitation year is the Compensation actually paid or
includable in gross income during such limitation year.
-25-
<PAGE>
Notwithstanding the preceding sentence, compensation for a participant in a
defined contribution plan who is permanently and totally disabled (as defined in
Section 22(e)(3) of the Internal Revenue Code) is the compensation such
participant would have received for the limitation year if the participant had
been paid at the rate of compensation paid immediately before becoming
permanently and totally disabled; such imputed compensation for the disabled
participant may be taken into account only if the participant is not a highly
compensated employee (as defined in Section 414(g) of the Code) and
contributions made on behalf of such participant are non forfeitable when made.
4.5 LIMITATION ON COMBINED BENEFITS AND CONTRIBUTIONS OF ALL DEFINED BENEFIT
------------------------------------------------------------------------
AND DEFINED CONTRIBUTION PLANS OF THE COMPANY: In any year if the Company
- ---------------------------------------------
makes contributions to a defined benefit plan on behalf of an Employee who also
is a Participant in this plan, then the sum of the defined benefit Plan fraction
and the defined contribution plan fraction (both as prescribed by law and as
defined below) for the Employee for the year may not exceed 1.0. In any year,
if the sum of the defined benefit plan fraction and the defined contribution
plan fraction on behalf of a Participant would exceed 1.0, the benefit accrued
on that Participant's behalf under the defined benefit plan will be limited to
the extent necessary to prevent the sum of the defined contribution fraction and
the defined benefit plan fraction from exceeding 1.0. The Company's
contribution on behalf of the Participant to this Plan may be applied as
provided under Section 4.4 to the extent necessary to prevent the sum of the
defined contribution plan fraction and the defined benefit plan fraction from
exceeding 1.0. Any remaining excess may be allocated to the suspense account
established under Section 5.3 and applied to offset Company Matching
Contributions in succeeding years in accordance with the provisions of Section
5.3. For purposes of this Section the annual limitation year is the Plan Year.
[a] Defined Benefit Plan Fraction: The defined benefit plan fraction is a
-----------------------------
fraction the numerator of which is the projected annual benefit of the
Participant under the plan (determined as of the close of the year) and the
denominator of which is the lesser of the following amounts determined for
that year and for each prior Year of Service with the Company:
[1] the product of 1.25 times the maximum benefit dollar limitation in
effect for the limitation year under Code Sections 415(b) and (d); or
[2] the product of 1.4 times 100% of the Participant's average
Compensation for his high three consecutive calendar years including
any adjustments under Code Section 415(b).
[b] Defined Contribution Plan Fraction: The defined contribution plan fraction
----------------------------------
is the fraction the numerator of which is the sum of the annual additions
to the Participant's Account under all defined contribution plans of the
Company as of the close of the limitation year and the denominator of which
is the sum of the lesser of the following amounts determined for that year
and for each prior Year of Service with the Company:
-26-
<PAGE>
[1] the product of 1.25 times the dollar limitations determined under Code
Section 415(b) and (d) in effect under Code Section 415(c)(1)(A) for
the limitation year; or
[2] 35% of the Participant's Compensation for the limitation year.
[c] Transition Rules: The Plan Administrator, in his discretion, may elect to
----------------
use the transition rules for calculating the defined contribution fraction
as provided in Code Sections 415(e)(4) and 415(e)(6).
4.6 TOP HEAVY PLAN PROVISIONS: The provisions of this Section will be in
-------------------------
effect for any Plan Years in which the Plan is Top Heavy.
[a] Minimum Contribution: If no other qualified plan maintained by the Company
--------------------
provides the minimum benefit or contribution for Participants required
under Code Section 416(c) for a Plan Year that the plan is Top Heavy, this
Plan will provide a minimum allocation (which may include forfeitures
otherwise allocable) for the Plan Year for each Participant (for purposes
of Code Section 416(c) and the regulations thereunder) who is a non-Key
Employee in an amount equal to at least 3% of the Participant's
Compensation for the Plan Year. If the percentage of contributions made
under the plan for the year for the Key Employee for whom such percentage
is the highest is less than 3%, salary reduction contributions made by Key
Employees must be included for purposes of determining contributions made
on behalf of Key Employees. Notwithstanding the preceding sentence, the
minimum allocation required under this paragraph may in no event exceed the
percentage of contributions made under the plan for the year for the Key
Employee for whom such percentage is the highest. If Employees who are
Participants in this Plan also participate in a defined benefit plan
maintained by the Company and both plans are Top Heavy for any Plan Year,
the Company may elect to satisfy the minimum contribution requirements of
Code Section 416(c) by providing a minimum allocation (which may include
forfeitures otherwise allocable) for the Plan Year for each Participant
(for purposes of Code Section 416(c) and the regulations thereunder) who is
a non-Key Employee in an amount equal to at least 5% of the Participant's
Compensation for the Plan Year. For purposes of this Section, Participants
who must be considered Participants to satisfy the coverage requirements of
Code Section 410(b) in accordance with Code Section 401(a)(5) and who have
not Terminated Employment at the end of the Plan Year will be eligible to
share the minimum contribution including Participants who have failed to
complete 1,000 or more Hours of Service, who have declined to make
Participant contributions to the Plan or who have been excluded because the
Participant's Compensation is less than a stated amount. For purposes of
this Section, Compensation shall mean Compensation as defined in Section
4.4. Neither salary deferral nor Company Matching Contributions may be
used to satisfy the Top Heavy minimum.
[b] Vesting: For any Plan Year for which the Plan is Top Heavy, 100% immediate
-------
vesting will automatically be in effect for all Account balances
attributable to Company contributions, including Company contributions made
before the Plan became Top Heavy, but not for the
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<PAGE>
Company Contributions Accounts of any Participant who is not credited
with an Hour of Service after the Plan first becomes Top Heavy. If the
Plan ceases to be Top Heavy, the percentage of vesting in the
Participants' Accounts attributable to Company contributions will not be
reduced.
[c] Modification of Plan Fraction: The 1.25 factor in the defined benefit plan
-----------------------------
fraction and defined contribution plan fraction (as the fractions are
defined in the preceding Section) will be reduced to 1.0 for any year that
the Plan is Top Heavy, unless the requirements of paragraph [a] are still
satisfied when 4% is substituted in the place of 3% or 7-1/2% is
substituted for 5% in paragraph [a]. The 1.25 factor will be reduced to
1.0 for any year that the Plan is Super Top Heavy.
4.7 EXCLUSIVE BENEFIT: This Plan and Trust have been established for the
-----------------
exclusive benefit of the Participants and their Beneficiaries. Under no
circumstances may any funds contributed to or held by the Trustee at any time
revert to or be used by the Company except that all contributions by the Company
to the Plan are conditional upon both the qualification of the Plan and the
deductibility of the contribution. At the Company's written request to the
Trustee a contribution by the Company may be returned to the Company within one
year of (1) the date of payment if the contribution was made by mistake of fact;
(2) the date initial qualification or qualification on Plan amendment is denied
provided the amendment is submitted to the Internal Revenue Service for
determination of qualification within one year after it is adopted; or (3) the
date deduction of a contribution is disallowed. The amount returned may not
include net earnings but may be adjusted for net losses attributable to the
contribution.
4.8 COMPANY'S OBLIGATIONS: The adoption and continuance of the Plan will
---------------------
not be deemed to constitute a contract between the Company and any Employee or
Participant, nor to be a consideration for, nor inducement nor condition of, the
employment of any person. Nothing in this Plan will be deemed to give any
Employee or Participant the right to be retained in the employ of the Company or
to interfere with the right of the Company to discharge any Employee or
Participant at any time, nor will it be deemed to give the Company the right to
require the Employee or Participant to remain in its employ, nor will it
interfere with the right of any Employee or Participant to terminate his
employment at any time.
4.9 ROLLOVER AND TRANSFER CONTRIBUTIONS: A Participant may contribute any
-----------------------------------
amount of funds to the Plan in any year if the contribution satisfies the
requirements under law for rollover contributions and if the Committee agrees in
writing to accept the contribution on behalf of the Plan and the Company. In
the event the Internal Revenue Service determines that all or any portion of any
Rollover contribution does not satisfy the requirements under law for Rollover
contributions, such Rollover contribution or portion thereof and any net
earnings attributable to such Rollover contribution or portion thereof shall be
distributed in a single payment to the Participant. Subject to the direction of
the Committee, the Trustee is authorized to receive and add to the Trust Fund as
a direct transfer, assets in cash attributable to the vested interest of any
Participant in a retirement plan qualified under Code Section 401 (a) if the
individual is a Participant in this Plan
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<PAGE>
provided, however, that assets of a money purchase pension plan, a target
benefit plan, a defined benefit plan or of a profit-sharing plan subject to
the qualified joint and survivor annuity provisions of Code Section 401(a)(11)
may be rolled over but may not be transferred to this Plan. Any Transfer
contributions will, to the extent adequate information about the contribution
is made available to the Committee, be allocated to the appropriate
Participant Accounts in this Plan and, if adequate information to make such
allocations is not made available to the Plan Administrator, then any such
contribution or portion of such contribution that cannot be allocated to a
Participant's other Plan Accounts will be allocated to a separate Transfer
Account for the Participant. Any rollover contributions will be allocated to a
separate Rollover Account for a Participant who makes a Rollover contribution.
ARTICLE V
PARTICIPANT ACCOUNTS
5.1 PARTICIPANT ACCOUNTS: The Plan Administrator will maintain one or more
--------------------
separate Accounts for each Participant in the following categories to which
contributions and Trust earnings will be credited as provided in the Plan:
[a] Basic Matched After-Tax Account to which a Participant's matched after-tax
contributions and earnings on those contributions will be credited;
[b] Supplemental Unmatched After-Tax Account to which a Participant's unmatched
after-tax contributions will be credited;
[c] Tax Deferred Savings Matched Account to which a Participant's matched tax
deferred contributions and earnings on those contributions will be
credited;
[d] Tax Deferred Savings Unmatched Account to which a Participant's unmatched
tax deferred contributions will be credited;
[e] Company Match Account to which a Participant's share of Company Matching
Contributions and earnings on those contributions will be credited;
[f] Rollover Account to which any Rollover contributions and earnings on those
contributions will be credited, or Transfer Account to which any transfer
contributions that were not allocated to other Participant Accounts and
earnings on those contributions will be credited; and
[g] Pension Account consisting of amounts transferred from the Pension Plan to
the AMAX Plan and then to this Thrift Plan and earnings on those
contributions will be credited.
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5.2 ALLOCATION OF CONTRIBUTIONS:
---------------------------
[a] Allocation of Participant Contributions: Except for the provisions of
---------------------------------------
Section 4.3, Company Contributions made pursuant to Sections 4.2[a][1] or
[2] shall be allocated as Company Matching Contributions so that each
Participant is allocated an amount of the Company Matching Contribution
which bears the same proportion to the total amount of the Company Matching
Contribution to be allocated pursuant to this Section 5.2[a] as matched
contributions made by such Participant up to 6% of his Compensation bears
to the matched contributions made by all Participants.
[b] Allocation of Participant Contributions: Participant Contributions received
---------------------------------------
by the Trustee will be credited to Participant Accounts as soon as the
amounts to be credited to Participant Accounts can be determined.
5.3 SUSPENSE ACCOUNT FOR UNALLOCATED FORFEITURES : In the event that the
--------------------------------------------
amount of forfeitures from the Company Match Account to be applied to offset
Company Matching Contributions or the forfeitures to be directly allocated would
exceed the annual addition limitations, a separate suspense account will be
established to hold the unallocated forfeitures for any year or years provided
that:
[a] no Company Contributions may be made at any time when their allocation
would be precluded by Section 415 of the Code;
[b] investment gains and losses and other income are not allocated to the
suspense account; and
[c] the amounts in the suspense account are applied to offset Company Matching
Contributions or are directly allocated for each Plan Year until the
suspense account is exhausted.
5.4 VESTING OF PARTICIPANT ACCOUNTS:
-------------------------------
[a] Participant Rollover and Transfer Contributions Accounts: A Participant's
--------------------------------------------------------
interest in Accounts attributable to Participant contributions (Basic
Matched After-Tax Account, Supplemental Unmatched After-Tax Account,
Matched Tax Deferred Savings Account, and Unmatched Tax Deferred Savings
Account) and in Accounts attributable to rollover or transfer contributions
will at all times be fully vested and nonforfeitable.
[b] Company Contributions: The interest of a Participant in his Company Match
---------------------
Account shall become fully vested upon the earliest to occur of:
(i) such Participant's death,
(ii) such Participant's attainment of age 65,
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(iii) such Participant's Retirement,
(iv) such Participant's Total and Permanent Disability,
(v) the Permanent Layoff of such Participant,
(vi) termination of the Plan,
(vii) permanent discontinuance of contributions by the Company to the
Plan. The temporary suspension of Company Contributions will not
constitute a termination or partial termination of this Plan; or
(viii) a Change in Control.
Except as otherwise specifically provided in this Section, a Participant
shall have at any time prior to April 1, 1994 a vested interest in his
Company Match Account in accordance with the following schedule:
<TABLE>
<CAPTION>
Period of Vesting Service Vested
------------------------- ------
<S> <C>
Less than 2 years 0%
2 years 25%
3 years 50%
4 years 75%
5 or more years 100%
</TABLE>
Effective April 1, 1994, a Participant who completes at least one Hour of
Service on or after April 1, 1994, will have a fully vested and
nonforfeitable interest in his Company Match Account.
5.5 SERVICE INCLUDED IN DETERMINATION OF VESTED ACCOUNTS : All Periods of
----------------------------------------------------
Vesting Service with the Company, its predecessors or with any Affiliated
Company or its predecessors will be credited for the purposes of determining a
Participant's vested percentage under Section 5.4 without regard to Break in
Service rules.
ARTICLE VI
INVESTMENT OF ACCOUNTS
6.1 INVESTMENT CATEGORIES: The investment categories will be selected by
---------------------
the Portfolio Committee and may include one or more of the following categories
plus any additional investment categories the Portfolio Committee determines in
its sole discretion to be appropriate:
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<PAGE>
--Common Stock of AMAX Gold Inc.
--Equity funds
--Bond funds
--Contract funds
--Money market fund
6.2 INVESTMENT DIRECTIONS: A Participant may, by written direction on the
---------------------
form provided by and filed with the Committee, direct the investment of
Participant contributions and may reinvest assets in any Account other than the
Company Match Account in any one or more of the investment categories offered
under Section 6.1. If investment or reinvestment in more than one category is
directed, the portion in each category must be specified as a percentage of the
total in multiples of 1%. A Participant may change investment directions for
future contributions effective for payroll deduction contributions for any month
provided the Participant notifies the Trustee before the end of the month. On
any business day the Participant may instruct the Trustee to liquidate any
investment in any of his Accounts except his Company Match Account and reinvest
the proceeds. Reinvestment instructions will be processed in accordance with
the procedures of the Trustee. Earnings on Account assets shall be invested in
accordance with then current Participant investment directions; provided,
however, that, except as otherwise specified by the Committee, earnings may be
invested only in one of the categories offered in Section 6.1 and earnings on
assets other than those specified in Section 6.1 will be invested in accordance
with continuing investment directions for the Account in which the assets are
held.
6.3 DIVERSIFICATION ELECTION: A Participant who has attained age 55 and
------------------------
completed a Period of Contribution 10 years long or longer may elect to have up
to 25% in each of the first four years and in the fifth year up to 50% of the
balance of his Company Match Account that is invested in Common Stock of the
Company reinvested in one or more other investment categories offered under the
Plan. The election may be made annually within 90 days after the close of the
year by filing with the Committee a completed diversification election on the
form provided by the Committee for this purpose.
6.4 LIQUIDATION OF SECURITIES: As of the Effective Date of this Plan,
-------------------------
each Participant who had securities credited to his Company Match Account in the
AMAX Plan shall have such securities credited to his Company Account under this
Plan. No later than as soon as practicable thereafter, each such Participant
shall designate, in a manner determined by the Plan Administrator for this
purpose, whether [1] any such securities that are not shares of the Common Stock
of the Company in what was the Participant's Company Account under the AMAX Plan
shall be liquidated and (together with any cash in such Account) shall be
invested in Common Stock of the Company or [2] whether any portion of what was
the balance of the Participant's Company Account under the
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<PAGE>
AMAX Plan shall be liquidated in integral multiples of one percent of such
balance and transferred to any of the other available investment categories
under this Plan.
6.5 INTERIM INVESTMENT: In the absence of effective investment directions,
------------------
the Committee Administrator will direct the Trustee to invest any cash in a
money market fund offered under Section 6.1.
6.6 TRANSFER OR ROLLOVER ACCOUNTS: The Trustee is authorized to continue to
-----------------------------
hold any property or security received as a Transfer or Rollover contribution.
A Participant may give investment or reinvestment directions with respect to
Transfer or Rollover Contribution Accounts, or any asset received as a Transfer
contribution and allocated to any other Participant Account, provided, however,
that any proceeds of the sale of any such property or security may be reinvested
only in one or more of the categories offered under Section 6.1. The investment
directions a Participant has given for the Accounts to which Rollover or
Transfer contributions are allocated will govern Transfer or Rollover
contributions.
6.7 REINVESTMENT OF COMPANY MATCH ACCOUNT: Notwithstanding the provisions of
-------------------------------------
this Article VI, a Participant whose Termination of Employment is due to
Retirement and who filed an election under Section 7.2 to defer distribution of
his Accounts may designate, in a manner determined by the Committee, that of his
Company Match Account shall be invested in the other investment categories
offered under Section 6.1, effective as of any subsequent Valuation Date
following his retirement.
6.8 VALUATION OF PARTICIPANT ACCOUNTS: Except as otherwise provided in the
---------------------------------
case of distributions under Article VII, Participant Accounts will be valued at
least annually as of the last day of each Plan Year on the basis of the then
current fair market value of the assets of the Trust Fund. At its discretion,
the Plan Administrator may value Participant Accounts more frequently.
ARTICLE VII
DISTRIBUTION FROM TRUST FUND
7.1 WHEN ACCOUNTS BECOME DISTRIBUTABLE: If a Participant dies, suffers Total
----------------------------------
Disability, Retires, or Terminates Employment for any other reason, the value of
the Participant's vested Account as of the date of distribution will be
distributable.
7.2 TIME AND FORM OF PAYMENT:
------------------------
[a] Time of Payment: Upon Termination of Employment, a Participant may file a
---------------
claim for payment with the Committee. Payment will be made on a date
within ninety (90) days after the close of the calendar quarter during
which the date of Participant's Termination of
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Employment occurs or Participant receives his last payroll check. If no
claim is filed, the Committee will schedule a payment date 60 days after
the end of the Plan Year during which the Participant attains Normal
Retirement Age, provided, however, that a Participant who Terminates
Employment because of Retirement may specify a deferred payment date not
later than the earlier of the date of the Participant's death or the date
a Participate attains age 70-1/2. A Participant may file a claim for
payment with the Committee at any time after Termination of Employment
and before attaining Normal Retirement Age for which payment will occur
within ninety (90) days following the close of the calendar quarter
during which the Participant files a claim for payment.
A deferred payment date may be accelerated at the Participant's written
direction to the Committee.
[b] Required Beginning Date: Payment must begin for any Participant:
-----------------------
[1] if he attained age 70-1/2 before January 1, 1988, and is not a 5-
percent owner (within the meaning of Section 416 of the Code) of the
Company at any time during the five-Plan-Year period ending in the
calendar year in which he attained age 70-1/2, or thereafter, April 1
of the calendar year following the later of the calendar year in which
he Terminates Employment or the calendar year in which he attained Age
70-1/2;
[2] if he attained age 70-1/2 before January 1, 1988, and is a 5-percent
owner (within the meaning of Section 416 of the Code) of the Company
at any time during the five-Plan-Year period ending in the calendar
year in which he attained age 70-1/2, or thereafter, the later of (1)
December 31, 1987, (2) April 1 of the calendar year following the
calendar year in which he attained age 70-1/2, or (3) April 1 of the
calendar year following the calendar year in which he becomes a 5-
percent owner;
[3] if he attains age 70-1/2 on or after January 1, 1988, April 1 of the
calendar year next following the calendar year in which he attains age
70-1/2;
[4] if he attained age 70-1/2 before January 1, 1989 and after December
31, 1987, is not a 5-percent owner of the Company (within the meaning
of Section 416 of the Code), and has not terminated employment from
Service before January 1, 1989, April 1, 1990.
[c] Payment In Cash Or In Kind: At a Participant's or Beneficiary's request,
--------------------------
payment of all or a portion of any Account invested in Common Stock of the
Company may be made in Common Stock of the Company. Fractional shares of
Common Stock of the Company will be paid in cash. When determining the
form of payment, the Committee will make any necessary adjustment on
account of any outstanding Plan loan.
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<PAGE>
[d] Form of Payment: Unless the Participant elects otherwise, the
---------------
Participant's Accounts other than the Participant's Pension Account will be
distributed in the form of a single sum payment in cash or partly in cash
and partly in Common Stock of the Company as elected under Subsection [c]
above. A Participant's Pension Account shall be distributed as provided in
Subsection [ii] below unless the Participant elects otherwise with spousal
consent:
[i] Installments: Payments in approximately equal quarterly or annual
------------
installments over a period, designated by the Participant, of not less
than two or more than 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 designated
Beneficiary. In the event that the Participant dies before all
installments have been paid, the remaining balance in his Account
shall be paid to his designated Beneficiary in a single cash sum.
[ii] Annuity: The purchase of a nonforfeitable fixed annuity, provided
-------
that if the Participant is married on his Annuity Starting Date, and
if he has not elected otherwise, the benefit shall be in the form of a
qualified joint and survivor annuity providing for a pension payable
to the Participant during his life and after his death a pension at
the rate of fifty-five percent of the pension paid to the Participant,
payable during the life of, and to the spouse to whom he was married
on the Annuity Starting Date. A Participant may elect during the 90-
day period preceding the Annuity Starting Date not to take the
qualified joint and survivor annuity and to take instead another form
of payment including an annuity provided in one of the options
specified below. Elections under this subsection [ii] shall be in
writing and shall be subject to receipt by the Committee of Spousal
Consent to the election. The Committee shall furnish each Participant
no less than 30 days nor more than 90 days before his Annuity Starting
Date a written explanation of the qualified joint and survivor annuity
in accordance with applicable law. The Annuity Starting Date is the
first day as of which an amount is payable in the form of an annuity
following the Participant's retirement or other termination of
employment. A Participant may revoke his election and make a new
election from time to time and at any time during the election period.
If the annuity form selected is not a qualified joint and survivor
annuity with the Participant's spouse as Beneficiary, the annuity
payable to the Participant and thereafter to his Beneficiary shall be
subject to the incidental death benefit rule as described in Section
401(a)(9)(G) of the Code and its application regulations.
A Participant who elects not to receive a qualified joint and survivor
annuity may elect to receive an annuity in one of the optional forms
described below or may elect to receive a single sum payment or
installment payments under Subsection [i] above.
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<PAGE>
Annuity Option 1. A pension payable during the Participant's life, and
after his death payable during the life of, and to,
the designated Beneficiary.
Annuity Option 2. A pension payable during the Participant's life, and
after his death payable at fifty-five percent of the
rate of his pension during the life of, and to, the
designated Beneficiary.
Annuity Option 3. A pension payable during the Participant's life, and
after his death payable at one-half the rate of his
pension during the life of, and to, the designated
Beneficiary.
7.3 DISPOSITION OF FORFEITABLE ACCOUNT ON TERMINATION OF EMPLOYMENT: If a
---------------------------------------------------------------
Participant's employment is terminated and the amount that is to be distributed
is $3,500 or less taking into account both Company and Participant
contributions) or the Participant consents to the distribution, then the
Participant's Accounts may be distributed in a single sum payment and any
portion of his Company Match Account that is forfeitable will be forfeited by
him immediately. If a single sum distribution is not made under the preceding
sentence, the portion of a Participant's Account that is forfeitable will be
forfeited as of the date the Participant incurs five consecutive one-year Breaks
in Service. A Participant who terminates employment without any vested interest
shall be deemed to have received a distribution upon such Termination of
Employment. If a Participant is reemployed prior to five consecutive one-year
Breaks in Service and did not receive distribution of his entire Account upon
Termination of Employment, his forfeited Account will be restored by means of a
Company contribution. Any amount forfeited will remain in the Trust Fund and
will be applied to offset Company Matching Contributions as provided in Section
4.2[a][1], used to reinstate forfeitures, or will be applied to pay Plan
expenses.
7.4 SPENDTHRIFT TRUST PROVISIONS: Except for benefits payable in accordance
----------------------------
with the applicable requirements of an order determined by the Plan
Administrator under procedures adopted by the Plan Administrator to be a
qualified domestic relations order under Code Section 414(p), all benefits
payable by the Plan will be paid only to the person entitled to them, and all
payments will be made directly to that person and not to any other person or
corporation. Payments will not be subject to the claim of any creditor of a
Participant, nor may payments be taken in execution by attachment or garnishment
or by any other legal or equitable proceeding. No person will have any right to
alienate, anticipate, commute, pledge, encumber, or assign any payments or
benefits that he may expect to receive, contingently or otherwise, under this
Plan, except the right to designate a Beneficiary or Beneficiaries.
7.5 DISTRIBUTION IN THE EVENT OF DEATH:
----------------------------------
If the Participant dies before distribution of his interest begins,
distribution of the Participant's entire interest in a single sum payment
shall be completed by December 31 of the calendar year containing the fifth
anniversary of the Participant's death except that upon the death of
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<PAGE>
a married Participant who participated in the Pension Plan, if the
Participant's death occurs before his Pension Account is fully
distributed, and if the Participant has not, with Spousal Consent,
designated a non-spouse Beneficiary, the Participant's Pension Account
shall be used to purchase a nonforfeitable single-life annuity providing
for a pension payable to the Participant's spouse (hereinafter referred
to as the "Survivor Annuity"), unless the spouse elects to receive the
remainder of the Pension Account in a single sum. The spouse's pension
shall commence on what would have been the Participant's Normal
Retirement Date, or date of death, if later, unless the Participant's
spouse elects to begin receiving payments as of the first day of any
month following the Participant's date of death, and prior to what would
have been his Normal Retirement Date. If a Participant who did not
participate in the Pension Plan has elected an annuity and his spouse is
his Beneficiary, payment shall be made in the form of a life annuity for
the life of the spouse unless the spouse elects a single sum payment.
If a Participant dies after distribution of his interest begins but before
distribution has been completed, distribution of the Participant's
remaining interest, if any, will be determined by the form in which
benefits were being paid to the Participants.
For purposes of this Section, any amount paid to a child of the Participant
will be treated as if it has been paid to the surviving spouse if the
amount becomes payable to the surviving spouse when the child reaches the
age of majority.
7.6 BENEFICIARIES:
-------------
[a] Order of Payment: If the Participant fails to designate a Beneficiary
----------------
before his death, or if no designated Beneficiary survives the Participant
the Participant's unpaid Account will be paid in a single sum to the
person, persons or entity in the first of the following classes of
successive preference beneficiaries surviving at the death of the
Participant:
[1] Spouse,
[2] Children,
[3] Estate.
These provisions will be deemed modified where necessary to comply with the
applicable law of any state.
[b] Change of Beneficiary: Subject to the requirements of Section 7.2[c][2]
---------------------
and 7.6[c], a Participant may designate a new Beneficiary at any time by
filing with the Committee a written change on a form furnished by the
Committee. The change will become effective only upon receipt of the form
by the Committee, but upon receipt the change will relate back to and take
effect as of the date the Participant signed the request, whether or not
the Participant is living at the time of receipt; provided, however, that
neither the Committee not the Company will be liable by reason of any
payment of the Participant's Account made before receipt of a form.
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<PAGE>
[c] Spousal Consent: For a Participant who is married, no Beneficiary
---------------
designation or change of Beneficiary or waiver of the qualified joint and
survivor annuity under this Plan will be effective unless the spouse of a
Participant consents in writing. Spousal consent must acknowledge the
effect of the election and must be witnessed by the a Plan representative
or a notary public. Spousal consent will not be required if it is
established to the satisfaction of the Committee that consent cannot be
obtained because the Participant has no spouse or the Participant's spouse
cannot be located. Any election, consent, or Beneficiary designation that
has the effect of revoking a waiver of a surviving spouse's benefit may be
made by a Participant without spousal consent anytime before the payment of
benefits is made.
[d] Uncertainty As To Right Of Beneficiary: If the Committee is in doubt as to
--------------------------------------
the right of any Beneficiary, the amount in question may be paid to the
estate of the Participant, in which event neither the Committee not the
Company will be under any further liability to anyone with respect to the
Account of the Participant.
[e] Participant or Beneficiary whose Whereabouts Are Unknown: In the case of
--------------------------------------------------------
any Participant or Beneficiary whose whereabouts are unknown, the Committee
will notify the Participant or Beneficiary at his last known address by
certified mail with return receipt requested advising him of his right to a
pending distribution. If the Participant, or Beneficiary cannot be located
in this manner, the Committee may direct the benefits deposited with the
registry of the appropriate district court, or establish an account in
Participant's name until it is claimed or until proof of death satisfactory
to the Committee is received by the Committee, or forfeit the Account. If
a claim for forfeited benefits is subsequently made by the Participant or
Beneficiary, the amount forfeited, unadjusted for earnings or interest will
be restored by means of a Company contribution and will be paid.
7.7 WITHDRAWALS DURING SERVICE:
--------------------------
[a] Withdrawals From After-Tax Accounts:
-----------------------------------
[i] A Participant while an Employee may withdraw all or part of his
contributions to his After-Tax Accounts made to the Plan before
January 1, 1987, excluding earnings.
[ii] A Participant who has withdrawn all amounts withdrawable under
Subsection [i] above may elect to withdraw all or part of his
contributions to his After-Tax Accounts made after January 1, 1987,
and earnings on after-tax contributions.
[iii] A Participant who has withdrawn all amounts withdrawable under
Subsections [i] and [ii] above may elect to withdraw any part of his
Rollover Account.
[iv] Not more than two withdrawals may be made from After-Tax Accounts in
any calendar year. Not more than one withdrawal may be made from a
Participant's Rollover Account in any calendar year.
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<PAGE>
[b] Withdrawals from Company Match Account: A Participant who has withdrawn
--------------------------------------
all amounts withdrawable under Subsection [a][i], [ii] and [iii] above may
withdraw all or part of his Company Match Account balance as of March 31,
1994. Company Matching Contributions made on or after April 1, 1994, and
earnings credited to the Company Match Account after April 1, 1994, may not
be withdrawn less than 24 months after being credited to the Account. No
more than one withdrawal may be made from the Company Match Account in any
calendar year.
[c] Withdrawals After Age 59-1/2: A Participant who has attained age 59-1/2
----------------------------
may elect to withdraw in the following order all or part of [i] the
contributions to his After-Tax Accounts made to the AMAX Plan before
January 1, 1987, [ii] contributions to his After-Tax Accounts made on or
after January 1, 1987, with earnings, [iii] the remainder of his
contributions to his After-Tax Accounts, [iv] his rollover contributions
with earnings, [v] the vested portion of his Company Match Account, and
then [vi] contributions to his Tax Deferred Accounts, with earnings.
[d] Hardship Withdrawals During Service From Tax-Deferred Savings Accounts: A
----------------------------------------------------------------------
Participant may withdraw amounts otherwise withdrawable from his After-Tax
and Rollover Accounts and Company Match Account in the order specified
under Sections 7.7[a] and [b] and then, 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
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 Committee's need to determine if
other resources have been exhausted can be satisfied 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;
[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 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
-39-
<PAGE>
source and proof of the specific amount of financial need. Hardship will
include expenditures arising from:
[i] unreimbursed medical expense of the employee, the employee's
spouse or any of his dependents.
[ii] purchase of a principal residence for the employee;
[iii] payment of tuition for the next 12 months of post-secondary
education for the employee, his spouse, children or dependents;
and
[iv] 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.
[e] Withdrawal Procedures: To make any withdrawal under this Section 7.7, a
---------------------
Participant shall make an application in the manner prescribed 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.
The minimum withdrawal shall be $500 or the total value of the vested
portion of the Participant Accounts available for withdrawal, if less. In
no event may a Participant who has deferred distribution of his Account
under Section 7.2 make a withdrawal. In no event may a Participant
withdraw an amount from his Pension Account. In the event a married
Participant has elected an annuity at the time a withdrawal is to be made,
the withdrawal election will not be effective without Spousal Consent.
[f] Form of Payment: Any amount withdrawn will be paid in a single sum
---------------
payment.
[g] Order of Asset Conversion: The Committee will convert assets to obtain
-------------------------
withdrawal proceeds in a uniform order which may change from time to time.
Participants shall be given notice of such order and of any changes.
7.8 QUALIFIED DOMESTIC RELATIONS ORDER: In the event that a Domestic
----------------------------------
Relations Order is presented to the Committee and is approved as Qualified
under certain Administrative Procedures adopted by the Committee, any and
all benefits created under an approved Qualified Domestic Relations Order
shall be available for distribution to the designated alternate payee as
soon as is administratively feasible after the date specified in the Order.
7.9 DIRECT TRANSFERS AND ROLLOVERS: This Section applies to distributions
------------------------------
made on or after January 1, 1993. Notwithstanding any provision of the
Plan to the contrary that
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<PAGE>
would otherwise limit a distributee's distribution election under this
Article, 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 to an eligible retirement plan specified by
the distributee in a Direct Rollover .
[a] Definitions:
-----------
[1] An Eligible Rollover Distribution is any distribution of all or any
portion of the balance to the credit of the Participant, except that
an Eligible Rollover Distribution does not include: (i) any
distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or
life expectancy) of the distributee 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; (ii) any
distribution to the extent such distribution is required under Code
Section 401(a)(9); and (iii) the portion of any distribution that is
not includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities).
[2] An Eligible Retirement Plan is an individual retirement account
described in Code Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in Code Section 401(a)
that accepts the Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to the
surviving spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
[3] A Distributee includes an Employee or former Employee. In addition,
the Employee's or former Employee's surviving spouse and the
Employee's or former Employee' spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined
in Code Section 414(p), are distributees with regard to the interest
of the spouse or former spouse.
[4] A Direct Rollover is a payment by the Plan to the Eligible Retirement
Plan specified by the Distributee.
[b] Procedures. The Committee may establish procedures for the distribution of
----------
Eligible Rollover Distributions, including any limitations on the amount
eligible for a rollover distribution, to the extent permitted by law.
7.10 PARTICIPANT LOANS:
-----------------
[a] Administration: The Committee or its designee shall be responsible for
--------------
administration of the loan program.
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<PAGE>
[b] Allowability: A Participant who is an Employee may borrow from his Account
------------
balances in 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
vested Account balances.
[2] The loan may not exceed the lesser of 50 percent of the market value
of the total vested Accounts at the time that a written loan request
from a Participant is received by the Plan Administrator 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 or such lower amount specified by the
Committee.
[4] The term of a loan will be not less than six months and not more than
5 years in increments of six months (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).
[5] A payroll deduction authorization for the term of the loan repayment
must be executed and delivered to the Committee.
[6] A promissory note in form satisfactory to the Trustee must be executed
and delivered to the Trustee. Payment of principal and interest shall
be made by payroll deduction.
[7] Each loan must require substantially level amortization over the term
of the loan, with payments not less frequently than monthly.
[8] One new loan will be allowed each Plan Year, but no more than one
outstanding loan will be permitted at any one time.
[9] 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. 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 for the unpaid
amount.
[10] The limits of this Section will apply to all loans to the Participant
under all plans maintained by the Company.
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<PAGE>
[d] Employee Direction For Loan Proceeds And Valuation Of Accounts:
--------------------------------------------------------------
[1] Employee Direction: A Participant shall execute a written request to
------------------
the Trustee setting forth the amount of the requested loan.
[2] 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 Trustee and within a reasonable
time after receipt by the Trustee of a written application for a loan.
[3] Order of Account and Asset Conversion: The Trustee will convert
-------------------------------------
Accounts and assets on a pro rata basis to obtain loan proceeds in the
order prescribed by the Trustee.
[e] Interest On Loan: Interest will be charged on loans at a commercially
----------------
reasonable rate determined by the Committee.
[f] Allocation of Loan Repayments: Loan payments will be credited to a
-----------------------------
Participant's Accounts in the reverse order from which such Accounts
provided loan proceeds.
[g] Prepayment of Loan:
------------------
[1] Employee-Participant: A Participant may make a single sum prepayment
--------------------
of all of an outstanding loan balance.
[2] 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.
[h] Loans to Terminated Employees: Terminated employees, who are parties in
-----------------------------
interest and who do not request a distribution of their account balances,
will be permitted to continue to make payments on pre-existing loans if the
Employees meet the criteria for the continuance of such loans established
by the Trustee.
[i] Loan Default: Any loan will be treated as being in default if a scheduled
------------
monthly payment is not made within ninety days of the payment due date. A
loan in default will be treated as a distribution made as of the default
date.
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<PAGE>
ARTICLE VIII
FIDUCIARY OBLIGATIONS
8.1 GENERAL FIDUCIARY DUTIES :A fiduciary must discharge his duties under the
------------------------
Plan solely in the interest of the Participants and the Beneficiaries and for
the exclusive purpose of providing benefits to Participants and to their
Beneficiaries and defraying reasonable expenses of administering the Plan. All
fiduciaries must act 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. Except as authorized by regulations of the
Secretary of Labor, no fiduciary may maintain the indicia of the ownership of
any assets of the Plan outside the jurisdiction of the district courts of the
United States. A fiduciary must act in accordance with the documents and
instruments governing the Plan to the extent the documents and instruments are
consistent with the requirements of law.
8.2 ALLOCATION OF FIDUCIARY RESPONSIBILITY: A named fiduciary may designate
--------------------------------------
persons other than named fiduciaries to carry out fiduciary responsibilities
under the Plan provided, however, that fiduciary responsibilities to manage or
control Plan assets may not be delegated except by appointment of an Investment
Manager. Named fiduciaries are the Trustee, the Committee, and the Portfolio
Committee.
8.3 LIABILITY INSURANCE AND INDEMNIFICATION: A fiduciary may purchase
---------------------------------------
insurance to cover liability from and for his own account. The Company may
purchase insurance to cover potential liability of those who serve in a
fiduciary capacity with regard to the Plan or may indemnify a fiduciary against
liability and expenses reasonably incurred by him in connection with any action
to which the fiduciary may be made a party by reason of his being or having been
a fiduciary.
8.4 PROHIBITED TRANSACTIONS: No fiduciary may cause the Plan to engage in a
-----------------------
transaction if the fiduciary knows the transaction constitutes a prohibited
transaction under law. No disqualified person under law other than a fiduciary
acting only as such) may engage in a prohibited transaction as prescribed by
law.
8.5 RECEIPT OF BENEFITS BY FIDUCIARIES: Nothing will prohibit any fiduciary
----------------------------------
from receiving any benefit to which he may be entitled as a Participant or
Beneficiary in the Plan, if the benefit is computed and paid on a basis that is
consistent with the terms of the Plan as applied to all other Participants and
Beneficiaries.
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<PAGE>
8.6 COMPENSATION AND EXPENSES OF FIDUCIARIES:
----------------------------------------
[a] General Rules: A fiduciary is entitled to receive any reasonable
-------------
compensation for services rendered or for the reimbursement of expenses
properly and actually incurred in the performance of his duties under the
Plan. However, a fiduciary who already receives full-time pay from the
Company may receive no compensation from the Plan, except for reimbursement
of expenses properly and actually incurred. All compensation and expenses
will be paid by the Plan, unless the Company, in its discretion, elects to
pay all or any part of the compensation and expenses.
[b] Compensation of Trustee: The Trustee is entitled to such reasonable
-----------------------
compensation for its services as the Company and the Trustee mutually shall
determine.
[c] Compensation of Persons Retained or Employed by Named Fiduciary: The
---------------------------------------------------------------
compensation of all agents, counsel, or other persons retained or employed
by a named fiduciary will be determined by the named fiduciary employing
the person, provided that a person who is a full-time employee of the
Company may not receive compensation from the Plan.
8.7 SERVICE BY FIDUCIARIES AND DISQUALIFIED PERSONS: Nothing in this Plan
-----------------------------------------------
will prohibit anyone from serving as a fiduciary in addition to being an
officer, employee, agent, or other representative of a qualified person.
8.8 PROHIBITION AGAINST CERTAIN PERSONS HOLDING CERTAIN POSITIONS: No person
-------------------------------------------------------------
who has been convicted of a felony will be permitted to serve as an
administrator, fiduciary, officer, Trustee, custodian, counsel, agent, or as a
consultant to this Plan, unless permitted under law. The Plan Administrator
will ascertain to the extent practical that no violation of this Section occurs.
No person knowingly may permit any other person to serve in any capacity that
would violate this Section.
ARTICLE IX
PLAN ADMINISTRATOR
9.1 APPOINTMENT OF PLAN ADMINISTRATOR: The Board of Directors will appoint
---------------------------------
as Plan Administrator the Thrift Plan Committee, the members of which will hold
office until resignation, death, or removal by the Board of Directors. If the
Board of Directors fails to appoint the Plan Administrator, the Board of
Directors will be the Plan Administrator. Any person may serve in more than one
fiduciary capacity. A committee member may resign at any time by giving written
notice to the Board of Directors. At any time a Committee member may be removed
by the Board of Directors without cause. As soon as practical following the
death, resignation, or removal
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<PAGE>
of any Committee member, the Board of Directors will appoint a successor.
Written notice of appointment of a successor Committee member will be given by
the Board of Directors to the Trustee. Until receipt by the Trustee of written
notice, the Trustee will not be charged with knowledge or notice of the
change.
9.2 INFORMATION TO BE MADE AVAILABLE TO COMMITTEE: To enable the Committee to
---------------------------------------------
perform all of his duties under the Plan, the Board of Directors will provide
the Committee with access to any information the Committee requires. If
required information is not available from the Company's records, the Committee
may obtain the information from the Participants. The Committee and the Company
may rely on and will not be liable for any information that an Employee provides
either directly or indirectly.
9.3 DUTIES AND POWER OF COMMITTEE:
-----------------------------
[a] General: In its sole discretion, the Committee will decide all questions
-------
arising in the administration, interpretation, and application of the Plan,
including all questions relating to eligibility and distributions, except
as may be reserved under this Plan to the Company. The decisions of the
Committee will be final. The Committee will direct the Trustee concerning
the payments to be made out of the Plan assets under this Plan. All
notices, directions, information, and other communications to and from the
Committee will be in writing.
[b] Employment of Advisers and Persons to Carry Out Responsibilities: The
----------------------------------------------------------------
Committee may employ one or more persons to render advice with regard to
any responsibility the Committee has under the Plan and may employ one or
more persons (including the Trustee) to carry out any of its
responsibilities under the Plan.
[c] Reporting and Disclosure: The Committee will be responsible for all
------------------------
applicable reporting and disclosure requirements of law. The Committee
will prepare, file with the Secretary of Labor or the Secretary of the
Treasury, and furnish to Plan Participants and Beneficiaries, when
applicable, the following:
[1] summary plan description;
[2] description of modifications and changes;
[3] annual report;
[4] terminal and supplementary reports;
[5] registration statement; and
[6] any other return, report, or document required by law.
[d] Inspection of Documents: The Committee is to make available for inspection
-----------------------
copies of the Plan and the latest annual report and the agreements under
which the Plan was established or is operated. The documents will be
available for examination by any Participant or Beneficiary in the
principal office of the Committee and in any other places necessary to make
available all pertinent information to all Participants. On written
request by any
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<PAGE>
Participant or Beneficiary, the Committee is to furnish a copy of the
latest updated summary plan description, and the latest annual report,
any termination report, and any agreements under which the Plan is
established or operated. In addition, the Plan Administrator is to comply
with every other requirement imposed on him by law.
[e] Keeping of Records: The Committee will keep any records that are necessary
------------------
or advisable in his judgment for the administration of this Plan.
[f] Bonding of Fiduciaries and Plan Officials: The Committee must procure
-----------------------------------------
bonds for every fiduciary of the Plan and for every person who handles
funds or other property of the Plan that is not exempt from the bonding
requirements. Bonds must conform to the requirements of law and will be in
an amount not less than $1,000 or if greater, 10% of the amount of funds
handled, with a generally applicable maximum of $500,000.
9.4 NOTICES FROM PARTICIPANTS: Whenever provision is made in the Plan
-------------------------
that a Participant may exercise any option or election or designate any
Beneficiary, the action of the Participant will be evidenced in writing on the
forms provided by the Committee, if a form is provided, signed by the
Participant and delivered to the Committee in person or by mail. Written notice
will not be effective until received by the Committee.
9.5 CLAIMS PROCEDURES:
-----------------
[a] Filing and Initial Determination of Claim: Any Participant, Beneficiary,
-----------------------------------------
or his duly authorized representative may file a claim for a Plan benefit
to which the claimant believes he is entitled. A claim must be in writing
and delivered to the Committee in person or by certified mail, postage
prepaid. Within 90 days after receipt of a claim, the Committee will send
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 exceed 90 days from the end of the initial period. If an
extension is necessary, the claimant will receive a written notice 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 the
denial of a claim is not furnished in accordance with this paragraph [a],
the claim will be deemed denied and the claimant will be permitted to
exercise his right of review pursuant to paragraphs [c] and [d] of this
Section.
[b] Duty of Plan Administrator Eden Denial of Claim: The Committee will
-----------------------------------------------
provide to a claimant who is denied a claim for benefit a written notice
setting forth in a manner calculated to be understood by the claimant:
[1] the specific reason or reasons for the denial;
[2] specific reference to pertinent Plan provisions on which the denial is
based;
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<PAGE>
[3] a description of any additional material or information necessary for
the claimant to correct the claim and an explanation of why the
material is necessary; and
[4] an explanation of the Plan's claim review procedure.
[c] Review of Claim Denial: Within 60 days after receipt by the claimant of
----------------------
written notice of the denial in whole or in part of his claim, the claimant
or his duly authorized representative, by written application to the
Committee in person or by certified mail, postage prepaid, may request a
review of the denial, may review pertinent documents, and may submit issues
and comments in writing. On receipt of the request for review, the Plan
Administrator will make a prompt decision on the review. The decision on
review will be written in a manner calculated to be understood by the
claimant, and will include specific reasons for the decision and specific
references to the pertinent Plan provisions on which the decision is based.
The decision on review will 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 will
be made not later than 120 days after receipt of a request for review. If
an extension is necessary the claimant will be given written notice of the
extension prior to expiration of the initial 60-day period. If notice of
the decision on the review is not furnished under this paragraph [c], the
claim will be deemed denied and the claimant will be permitted to exercise
his right to legal remedy under paragraph [d] of this Section.
[d] Legal Remedy: After exhaustion of the claim procedure as provided under
------------
this Plan, nothing will prevent any person from pursuing any other legal
remedy.
ARTICLE X
TRUSTEE
10.1 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.
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.
10.2 VOTING SHARES OF COMPANY STOCK:
------------------------------
[a] Notwithstanding any other provision of the Plan, each Participant (or, if
applicable, the Participant's beneficiary) shall have the right to instruct
the Trustee, with respect to the voting of the full shares of Common Stock
of the Company in the Participant's Account 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 in the Participant's Account. Individual
instructions received from Participants (or their beneficiaries) by the
Trustee (whether regarding voting,
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<PAGE>
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.
[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 for the shares of Common
Stock of the Company allocated to such Participant's Account, together with
a form for providing confidential instructions to the Trustee on how to
vote the full shares of Common Stock of the Company allocated to the
Participant's Account. The Trustee shall vote such shares of Common Stock
of the Company as instructed in instructions received on or prior to the
date specified in the instruction. Any Common Stock of the Company
allocated to a Participant's account for which voting instructions have not
been timely received and any fractional interests of shares of Common Stock
allocated to a Participant Accounts, 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) with
respect to allocated shares.
[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 Common Stock of the Company (including any fractional
share) allocated to the Participant's Account in the Plan. Any allocated
Common Stock of the Company 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 of the
Company 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, 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.
10.3 EMPLOYEE BENEFITS PORTFOLIO REVIEW COMMITTEE:
--------------------------------------------
[a] The Board of Directors shall appoint an Employee Benefits Portfolio Review
Committee (the "Portfolio Committee") which shall consist of not less than
five persons. The members of the Portfolio Committee shall be employees,
retired employees or directors of the Company (or any of its subsidiaries
or affiliates), shall be appointed from time to time by and for such terms
as the Board of Directors may designate, and shall serve at the pleasure of
the Board of Directors. The Board of Directors shall designate the persons
who shall serve as Chairman or Secretary of the Portfolio Committee, and
the members of the Portfolio Committee may elect such other officers as
they deem necessary who may, but need not, be members of the Portfolio
Committee. The Portfolio Committee shall meet periodically. Three
members, but
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<PAGE>
not less than one-third of the Portfolio Committee at the time in office,
shall constitute a quorum for the transaction of business. All
resolutions or other actions taken by the Portfolio 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 of the Portfolio Committee may be taken otherwise
than at a meeting. The members of the Portfolio Committee may appoint
from their number such committees with such powers as they shall
determine, may authorize one or more of their number of any agent to
execute or deliver any instrument or instruments on their behalf, and may
employ such counsel, agents, investment advisory or evaluative services
and other services as they require in carrying out their duties.
[b] The Portfolio Committee is expressly authorized and empowered to appoint
one or more Investment Managers for all or any designated portion of the
Plan assets, 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 Manger 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 investment
categories (or the portion of the investment category as specified by the
Portfolio Committee).
[c] The Portfolio Committee is expressly authorized and empowered to appoint
one or more financial institutions from which investment contracts may be
purchased with assets held in an investment category and is expressly
empowered to remove any such financial institution at any time. The
Portfolio Committee shall notify the Trustee in writing of any appointment
or removal of a financial institution under this Section 10.3
[d] The Portfolio 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 Plan assets over which the Portfolio Committee
granted such Investment Manager control) until such time as the Portfolio
Committee shall file with the Trustee a notice of revocation of such
appointment.
[e] The Portfolio Committee may require an Investment Manager appointed
pursuant to this Section 10.3 to prepare and submit, from time to time or
at such intervals as the Portfolio Committee may specify, such information
relating to its investment activities, policies and performance as the
Portfolio Committee may deem appropriate.
[f] The Portfolio Committee shall cause to be maintained accounts showing all
the investments held under the trust and shall submit investment reports to
the Plan Administrator at any time such reports are requested by the Plan
Administrator and in no event less than annually. Each member of the
Portfolio Committee shall use that degree of care, skill, prudence and
diligence, under the circumstances then prevailing, that a prudent person
acting in a like capacity and familiar with such matters would use in his
conduct of a similar situation.
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<PAGE>
ARTICLE XI
CONTINUANCE, TERMINATION, AND
AMENDMENT OF PLAN AND TRUST
11.1 TERMINATION OF PLAN AND TRUST:
-----------------------------
[a] General Rules: The expectation of the Company is to continue this Plan and
-------------
Trust indefinitely, but continuation of the Plan and Trust is not assumed
as a contractual obligation by the Company, and the right is reserved to
the Company, by action of the Board of Directors, to terminate this Plan
and/or Trust in whole or in part at any time prior to a Change in Control.
The Board of Directors shall have discretion to liquidate the Plan or
continue a frozen plan making distributions as provided in Article VII.
Termination by the Company in no event will have the effect of reinvesting
any part of the Trust Fund in the Company. Notice of termination will be
given to the Trustee in the form of an instrument in writing executed by
the Company pursuant to the action of its Board of Directors, together with
a certified copy of the resolution of its Board of Directors to that
effect. In his discretion, the Plan Administrator may request a favorable
determination letter from the Internal Revenue Service stating that the
prior qualified status of the Plan has not been affected by termination.
Termination of the Plan and/or Trust will take effect as of the date
specified by the Board of Directors. The Plan and Trust created by
execution of this agreement will be terminated automatically in the event
of the dissolution, consolidation, or merger of the Company, or the sale by
the Company of substantially all of its assets, if the resulting successor
corporation or business entity does not continue the Plan and Trust. The
Committee will file any termination reports required by law. Amounts
contributed on a tax deferred basis under Section 4.1[b] will not be
distributed before retirement, death, disability, separation from service,
attainment of age 59-1/2, termination of the Plan without a successor plan,
or sale of assets or sale of' a subsidiary with respect to an employee who
continues employment with the purchaser, except as otherwise provided under
the financial hardship withdrawal rules in Section 7.7[b], and will not be
distributed merely by reason of the completion of a stated period or the
lapse of a fixed number of years unless otherwise allowed under this
sentence.
11.2 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS OR LIABILITIES OF THE PLAN:
-----------------------------------------------------------------------
The Board of Directors may merge or consolidate this Plan with any other Plan or
may transfer the assets or liabilities of the Plan to or from any other Plan
if each Participant in the Plan (if the Plan then terminated) would receive a
benefit immediately after the merger, consolidation, or transfer that is equal
to or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation, or transfer (if the Plan then
had terminated). If any merger, consolidation, or transfer of assets or
liabilities occurs, the Committee will file any reports required by law.
-51-
<PAGE>
11.3 AMENDMENTS TO PLAN AND TRUST: At any time prior to a Change in Control,
----------------------------
the Board of Directors may amend this Plan and Trust, provided that no amendment
may cause the Trust Fund to be diverted to purposes other than for the exclusive
benefit of the Participants and their Beneficiaries. To the extent authorized
by the Board of Directors, the Committee and the President of the Company may
amend the Plan. No amendment may decrease the vested interest of any
Participant. If an amended vesting schedule is adopted, any Participant who has
three or more Years of Service at the later of the date the amendment is adopted
or becomes effective may elect to remain under the Plan's prior vesting
schedule. Notwithstanding the preceding sentence, no election need be provided
for any Participant if the non-forfeitable percentage under the Plan as amended
cannot be less than the percentage determined without regard to the amendment.
The election must be made within a period established by the Committee in
accordance with applicable regulations, and in a form provided by and delivered
to the Committee. No amendment may discriminate in favor of Employees who are
officers, shareholders, or highly compensated Employees. Notwithstanding
anything in this Plan and Trust to the contrary, the Plan and Trust may be
amended at any time to conform to the provisions and requirements of federal and
state law or any amendments to those laws or regulations or rulings issued
pursuant to them. No such amendment will be considered prejudicial to the
interest of any Participant or Beneficiary under this Plan. No amendment may
decrease the vested Account of any Participant. For purposes of this paragraph,
a Plan amendment which has the effect of (1) eliminating or reducing an early
retirement benefit or a retirement-type subsidy or (2) eliminating an optional
form of benefit with respect to benefits attributable to service before the
amendment will be treated as reducing Accounts.
11.4 CHANGE IN CONTROL: Following a Change in Control, the Board of Directors
-----------------
may not amend or otherwise modify the Plan or any provision thereof unless [i]
the proposed amendment or modification is submitted to a vote of Participants
who were participants in the Plan on the date of the Change in Control, and
[ii] such amendment or modification is approved by the affirmative vote of
three-quarters (3/4) of such Participants; provided, however, that such
approval shall not be required for amendments or modifications that are
necessary to comply with the qualification requirements of the Code.
11.5 PARTICIPATING COMPANIES:
-----------------------
[a] Requirements for Participation: Any Affiliated Company may participate in
------------------------------
the Plan as a participating Company, provided its participation is approved
by the Board of Directors and it executes an instrument of participation.
The instrument of Plan participation may contain terms and conditions
approved by the Board of Directors and applicable only to the participating
Company, and to the extent the qualification of the Plan is not affected,
will constitute an amendment of the Plan as it applies to the participating
Company.
[b] Employee Transfers Within Participating Group: A transfer of employment
---------------------------------------------
from one participating Company to another, will not be considered a
Termination of Employment and the Accounts of the Participant whose
employment is transferred will be transferred to the group of Accounts of
the transferee Company. A transferee Company will continue any
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<PAGE>
funding of the Plan for any Employee it acquires by transfer and credit
the prior Years of Service of the transferred Participant.
[c] Withdrawal by Participating Company: Any participating Company, by action
-----------------------------------
of its Board of Directors, may withdraw from participation in the Plan upon
written notice to the Committee and the Trustee, and may (i) treat the
withdrawal as a termination of its Plan; or (ii) treat the withdrawal as an
amendment of its Plan and direct the Trustee to segregate and transfer to a
separate trust and qualified Plan the Accounts of Participants and
Beneficiaries allocable to the participating Company; or (iii) treat the
withdrawal as an amendment of its Plan and direct the Trustee to segregate
and transfer such Accounts to another qualified plan in which the
participating Company may participate; provided that the value of Accounts
of any Participant immediately after any transfer will be equal to the
value of the Accounts immediately before the transfer.
[d] Contributions on Behalf of a Participating Company: In the event that any
--------------------------------------------------
participating Company is prevented from making all or a portion of its
contribution by reason of not having sufficient current or accumulated
earnings and profits to make its contributions under this Plan for a year
in which a consolidated federal income tax return properly including the
participating Company as a member of the affiliated group is filed, another
participating Company included in the affiliated group, to the extent it
has sufficient current or accumulated earnings and profits, will pay, on
behalf of the participating Company, the portion of the participating
contributions the Company is otherwise prevented from making for the Plan
Year.
ARTICLE XII
MISCELLANEOUS
12.1 BENEFITS TO BE PROVIDED SOLELY FROM THE TRUST FUND: All benefits payable
--------------------------------------------------
under this Plan will be paid or provided solely from the Trust Fund, and the
Company assumes no liability or responsibility for payment of benefits.
12.2 NOTICES FROM PARTICIPANTS: Whenever provision is made in the Plan that a
-------------------------
Participant may exercise any option or election or designate any Beneficiary,
the action of each Participant must be evidenced by a written notice signed by
the Participant and delivered to the Committee in person or by certified mail.
If a form is furnished by the Committee for that purpose, a Participant will
be given written notice of his exercise of any option or election or of his
designation of any Beneficiary on the form provided for that purpose. Written
notice will not be effective until received by the Committee.
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<PAGE>
12.3 TEXT TO CONTROL: The headings of articles and Sections are included
---------------
solely for convenience of reference. If any conflict between any heading and
the text of this Plan and Trust exists, the text will control.
12.4 SEVERABILITY: If any provision of this Plan is illegal and invalid for
------------
any reason, the illegality or invalidity will not affect the remaining
provisions. On the contrary, the remaining provisions will be fully severable,
and this Plan will be construed and enforced as if the illegal or invalid
provisions never had been inserted in the agreement.
12.5 JURISDICTION: This Plan will be construed and administered under the
------------
laws of the state of Colorado when the laws of that jurisdiction are not in
conflict with federal substantive law.
12.6 GENDER AND PLURALS: The masculine gender will include the feminine, and
------------------
the singular will include the plural.
AMAX GOLD INC.
By:
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Its:
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<PAGE>
AMAX GOLD INC.
May 12, 1994
Paul J. Hemschoot, Jr.
Vice President
Secretary and General Counsel
Amax Gold Inc.
9100 East Mineral Circle
Englewood, CO 80112
Re: Registration Statement on Form S-8; 1,000,000 Shares of Common Stock; To
Be Issued Pursuant to the Thrift Plan for the Employees of Amax Gold Inc.
and Its Subsidiaries, Effective April 1, 1994 (the "Thrift Plan")
Gentlemen:
As Vice President and General Counsel to Amax Gold Inc. (the "Company"), I
have acted as counsel to the Company with respect to the registration of
1,000,000 shares of the Company's common stock, par value $0.01 per share
("Common Stock") described in the above-referenced Registration Statement on
Form S-8 being filed with the Securities and Exchange Commission concurrently
herewith the ("Registration Statement"). In connection therewith, I have
participated in the preparation, authorization, execution and filing of the
Registration Statement, the preparation, authorization, execution and
implementation of the Thrift Plan (as well as a predecessor plan which was
effective November 15, 1993 and was superseded by the Thrift Plan) and the
authorization of the shares of Common Stock issued and to be issued pursuant
to the terms of the Thrift Plan and its predecessor plan (the "Shares").
In addition, as Secretary of the Company I have custody of the essential
corporate records of the Company, including records of the proceedings of the
Company's Board of Directors authorizing the adoption of Thrift Plan (as well
as its predecessor plan) and the issuance of the Shares pursuant to the terms of
the Thrift Plan and its predecessor plan.
Based on the foregoing, I am of the opinion that the Shares have been duly
authorized and when issued and sold as contemplated in the Registration
Statement and in accordance with the terms of the Plan, will be validly issued
as fully paid and non-assessable shares of Common Stock of the Company. Those
Shares which have been issued as matching company contributions pursuant to
the terms of the predecessor plan are also duly authorized and validly issued as
fully paid and non-assessable shares of Common Stock of the Company.
In giving this opinion, I am acting as a member of the Bar of the State of New
York, and my opinion is limited to the laws of that State, the federal laws of
the United States of America and the general corporate laws of the State of
Delaware.
I hereby consent to be named in the Registration Statement and in the
prospectus constituting a part thereof, as amended from time to time, as the
attorney who will pass upon legal matters in connection with the issuance of
the Shares, and to the filing of this Opinion as an Exhibit to the Registration
Statement. In giving this consent, I do not thereby admit that I am in the
category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules of the Securities and Exchange
Commission.
Very truly yours,
/s/ Paul J. Hemschoot, Jr.
Vice President, Secretary and
General Counsel
PJH:mr
9100 East Mineral Circle, P.O. Box 6940, Englewood, Colorado 80155 USA
Telephone (303) 643-5540 Facsimile (303) 643-5506
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Amax Gold Inc. on Form S-8 of our reports, which include an explanatory
paragraph regarding a change in the method of accounting for exploration
expenditures and postemployment benefits in 1993, and a change in the method
of accounting for precious metals inventory, postretirement benefits and
income taxes in 1992, dated February 4, 1994, except for Note 8, for which the
date is March 18, 1994, on our audits of the consolidated financial statements
and financial statement schedules of Amax Gold Inc., as of December 31, 1993
and 1992, and for the three years ended December 31, 1993, 1992 and 1991.
/s/ Coopers & Lybrand
COOPERS & LYBRAND
Denver, Colorado
May 16, 1994
