<PAGE>
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
IMC GLOBAL INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
2100 Sanders Road
Northbrook, Illinois 60062
(Address of principal executive offices) (Zip Code)
INVESTMENT PLAN FOR
SALARIED EMPLOYEES OF IMC-AGRICO MP, INC.
(Full Title of the Plan)
Marschall I. Smith
Senior Vice President, Secretary and General Counsel
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
(Name and Address of Agent for Service)
(708) 272-9200
(Telephone Number, Including Area Code, of Agent for Service)
__________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of Amount to Proposed Maximum Proposed Maximum Amount of
Securities be Registered Offering Price Aggregate Offering Registration Fee
to be Per Share Price
Registered (1)
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $1 50,000 shares $44.875 (2) $2,243,750 (2) $774
par value
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Preferred Stock 50,000 rights (3) (3) (3)
Purchase Rights
- ----------------------------------------------------------------------------------------------------------------------------------
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee based on the average of the
high and low prices for IMC Global Inc. Common Stock on the New York Stock
Exchange consolidated reporting system on May 25, 1995.
(3) The Company's Preferred Stock Purchase Rights initially are carried and
trade with the shares of Common Stock of the Company being registered hereunder.
Value attributable to such Preferred Stock Purchase Rights, if any, is reflected
in the market price of the Common Stock.
</TABLE>
_________________________________
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
by IMC Global Inc. (the "Company") are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended June 30,
1994.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1994, December 31, 1994 and March 31, 1995.
3. The Company's Current Reports on Form 8-K dated July 28, 1994, August 2,
1994, October 3, 1994, October 21, 1994, November 19, 1994 and February 17,
1995.
4. The description of the Company's Common Stock and Preferred Stock Purchase
Rights associated therewith contained in the Company's Registration
Statement on Form 8-A filed under Section 12 of the Securities Exchange Act
of 1934, dated June 23, 1989, including any amendment or report filed for
the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act and all documents filed by the Plan pursuant to
Section 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the respective dates of
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The statements of law and legal conclusions in the paragraphs under
"Contingencies" in the Annual Report of the Company on Form 10-K for the fiscal
year ended June 30, 1994, incorporated herein by reference were reviewed by
Marschall I. Smith, Esq., General Counsel to the Company and are included upon
the authority of such counsel.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 145 of the Delaware General Corporation Law of
the State of Delaware (the "Delaware GCL") which provides for indemnification of
directors and officers in certain circumstances. The Company has insurance to
indemnify its directors and officers for those liabilities in respect of which
such indemnification insurance is permitted under the laws of the State of
Delaware.
The Company's Certificate of Incorporation provides that to the fullest
extent permitted by Delaware law a director shall not be liable to the Company
or its stockholders for monetary damages for breach of duty as a director.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit Description.
<S> <C>
* 4.1 Investment Plan for Salaried Employees of IMC-Agrico MP, Inc.
* 4.2 Investment Trust for Salaried Employees of IMC-Agrico MP, Inc.
4.3 Restated Certificate of Incorporation of IMC Global Inc. is hereby
incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K dated October 21, 1994.
4.4 Rights Agreement dated June 21, 1989 between the Company and The First
National Bank of Chicago, is hereby incorporated by reference to
Exhibit 10.35 to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1989.
4.5 Bylaws of the Company, are hereby incorporated by reference to the
Company's Current Report on Form 8-K dated July 2, 1991.
*23.1 Consent of Ernst & Young LLP, independent auditors.
*23.2 Consent of Marschall I. Smith.
*24 Powers of Attorney.
________________________________________
<FN>
* Filed Herewith
</TABLE>
II-2
<PAGE>
The Company will submit or has submitted the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and has made
or will make all changes required by the IRS in order to qualify the Plan.
Item 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
(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 registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 and each filing of the Plan's annual report
II-3
<PAGE>
pursuant to Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Northbrook, Illinois, on May 26, 1995.
IMC GLOBAL INC.
By: ROBERT C. BRAUNEKER
-------------------
Robert C. Brauneker
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on May 26, 1995.
Signatures Title
* Chairman of the Board, Chief
------------------- Executive Officer and Director
Wendell F. Bueche (Principal Executive Officer)
* President and Chief Operating
------------------- Officer and Director
James D. Speir
ROBERT C. BRAUNEKER Executive Vice President
------------------- (Chief Financial Officer)
Robert C. Brauneker (Principal Accounting Officer)
* Director
-------------------
Raymond F. Bente
* Director
-------------------
Frank W. Considine
* Director
-------------------
Dr. James M. Davidson
* Director
-------------------
Richard A. Lenon
* Director
-------------------
David B. Mathis
* Director
-------------------
Thomas H. Roberts, Jr.
* Director
-------------------
Billie B. Turner
* By MARSCHALL I. SMITH
------------------
Marschall I. Smith Attorney-in-Fact
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
Investment Plan for Salaried Employees of IMC-Agrico MP, Inc. 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 Northbrook,
Illinois, on May 26, 1995.
INVESTMENT PLAN FOR SALARIED EMPLOYEES OF
IMC-AGRICO MP, INC.
By:
JAMES D. SPEIR
---------------------------
James D. Speir, Member of Employee Benefits
Committee
ROBERT C. BRAUNEKER
---------------------------
Robert C. Brauneker, Member of Employee
Benefits Committee
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description.
<S> <C>
*4.1 Investment Plan for Salaried Employees of IMC-Agrico MP, Inc.
*4.2 Investment Trust for Salaried Employees of IMC-Agrico MP, Inc.
4.3 Restated Certificate of Incorporation of IMC Global Inc. is hereby
incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K dated October 21, 1994.
4.4 Rights Agreement dated June 21, 1989 between the Company and The First
National Bank of Chicago, is hereby incorporated by reference to
Exhibit 10.35 to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1989.
4.5 Bylaws of the Company, are hereby incorporated by reference to the
Company's Current Report on Form 8-K dated July 2, 1991.
*23.1 Consent of Ernst & Young LLP, independent auditors.
*23.2 Consent of Marschall I. Smith.
*24 Powers of Attorney.
________________________________________
<FN>
* Filed Herewith
</TABLE>
<PAGE>
INVESTMENT PLAN FOR SALARIED EMPLOYEES
OF
IMC-AGRICO MP, INC.
Effective July 1, 1993
<PAGE>
INVESTMENT PLAN FOR SALARIED EMPLOYEES
OF
IMC-AGRICO MP, INC.
TABLE OF CONTENTS
Article Section
- ------- -------
1 Title
2 Definitions
3 Participation
3.1 Eligibility Requirements
3.2 Applications
3.3 Termination of Participation
3.4 Safe-Harbor For Leased Employees
3.5 Participation and Accrual -
Leased Employees
4 Employee Contributions and
Salary Reduction Contributions
4.1 Contributions Allowed
4.2 Changes in Amount of Contributions
4.3 Automatic Suspension of Contributions
4.4 Voluntary Suspension of Contributions
4.5 Rollover Contributions
4.6 Contribution Percentage
4.7 Definitions
4.8 Special Rules
4.9 Distribution of Excess Aggregate
Contribution
4.10 Deferral Percentage
4.11 Definitions
4.12 Special Rules
4.13 Distribution of Excess Deferrals
4.14 Distribution of Excess Contributions
4.15 Aggregate Rule
Employer Contributions
5
5.1 Amount of Contributions
5.2 Statutory Limitations on Contributions
5.3 Limitation Year
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<PAGE>
Article Section
- ------- -------
6 Trust and Investment Provisions
6.1 Trustee
6.2 Investment of Contributions
6.3 Change in Investment Direction
6.4 Investment Income
6.5 Expenses of Funds
6.6 Investment Manager
7 Participant's Plan Account
7.1 Plan Account and Vesting
7.2 Dollars
7.3 Valuation of Fund Sub-Accounts as of
a Valuation Date
7.5 Valuation of Fund Sub-Accounts on
Other Than a Valuation Date
7.6 Value of Plan Accounts
7.7 Committee to Furnish Annual Statements
of Value of Plan Accounts
7.8 Transfers from Hourly Savings and
Profit Sharing Plans
8 Withdrawals, Distribution, and Loans
8.1 Withdrawal of Employee Contributions
8.2 Hardship Withdrawal from Employer and
Employee Accounts
8.3 Withdrawal from Salary Reduction
Account
8.4 Distribution Upon Election to
Discontinue Contributions for
an Indefinite Period
8.5 Loans
8.6 Distribution Upon Termination of
Employment
8.7 Time and Manner of Distributions
8.8 Designation of Beneficiary
8.9 Distribution to Minor and Disabled
Distributees
8.10 Distributions
8.11 Conditions for Distribution to
Beneficiary, Upon Death of
a Participant
8.12 Direct Rollovers
9 Special Rules Relating to Reemployment
of Terminated Employees and Employ-
ment by Related Entities
9.1 Reemployment of a Terminated Participant
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<PAGE>
Article Section
- ------- -------
10 Administration
10.1 The Committee
10.2 Plan Administrator
10.3 Claims Procedure
10.4 Notice to Participants and
Distributees
10.5 Notices of Committee or Employers
10.6 Records
10.7 Reports of Trust Fund
11 Participation by Other Employers
11.1 Adoption of Plan
11.2 Withdrawal from Plan
11.3 Company as Agent for Employers
12 Continuance by a Successor
13 Domestic Relations Orders and Loans
13.1 "QDRO"
13.2 Indebtedness
14 Miscellaneous
14.1 Expenses
14.2 Non-Assignability
14.3 Employment Non-Contractual
14.4 Limitation of Rights
14.5 Merger or Consolidation with Another
Plan
14.6 Reversion of Employer Contributions
15 Amendment, Withdrawal and Termination
15.1 Amendment
15.2 Withdrawal
15.3 Termination
15.4 Distribution Upon Sale of Assets
15.5 Distributions Upon Sale of Subsidiary
16 Top-Heavy Plan Years
16.1 Definitions
16.2 Application of Other Sections
16.3 Determination of Top Heaviness
16.4 Contributions for Top Heavy Years
16.5 Limitations on Compensation
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<PAGE>
Article Section
- ------- -------
17 Transfer of Account Balances
17.1 Transfer of Accounts and Vesting
17.2 Investment of Accounts
17.3 Participant Accounts
17.4 Distribution from Participant's Accounts
Upon Termination of Employment
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<PAGE>
INVESTMENT PLAN FOR SALARIED EMPLOYEES
OF
IMC-AGRICO MP, INC.
Effective July 1, 1993
______________________________________
The Investment Plan for Salaried Employees of IMC-Agrico MP,
Inc.(the "Plan") is adopted effective July 1, 1993.
In all cases where this Plan refers to a person, the reference
pertains to both genders.
Account balances of participants in the Investment Plan for
Salaried Employees of IMC Fertilizer, Inc. on June 30, 1992 or the
Freeport-McMoRan Inc. Employee Capital Accumulation Program which are
transferred to this Plan pursuant to the provisions of that certain Contribution
Agreement dated as of April 5, 1993 between Freeport-McMoRan Resource Partners,
Limited Partnership and IMC Fertilizer, Inc. are fully vested and
nonforfeitable.
ARTICLE 1
TITLE
The title of this Plan is the "Investment Plan for Salaried
Employees of IMC-Agrico MP, Inc."
ARTICLE 2
DEFINITIONS
As used herein, the following words and phrases shall have the
following respective meanings unless the context clearly indicates otherwise:
<PAGE>
(1) ACTIVE PARTICIPANT. A participant who is presently making
contributions to the plan pursuant to Section 4.1.
(2) AFFILIATE. Any corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of
the Code) as an Employer or an unincorporated trade or business which is
under common control with an Employer (as determined under Section 414(c)
of the Code).
(3) BENEFICIARY. The person or persons who shall be entitled
under Section 8.8 to receive benefits in the event of the death of a
Participant.
(4) BREAK IN SERVICE. The period of time beginning on the first
day of the month following termination of an individual's employment and
ending on the last day of the month immediately preceding the month in
which an individual is reemployed if such period is at least 12 months
long, provided that an individual shall be deemed to be employed during
any period in which he is in Military Service, provided that he returns to
the employ of an Employer within the period prescribed by law relating to
the reemployment rights of persons in Military Service, during any period
for which he is entitled to receive compensation even though he performs
no services during such period (such as vacation, leave of absence, sick
leave or disability leave), and during any period for which he is laid off
or is on an uncompensated leave of absence duly granted by his Employer or
is on a maternity or paternity leave of absence which has been approved by
the administrator for purposes of eligibility service under this Plan,
determined under uniform rules adopted by the committee in accordance
with Regulations.
(5) CODE. The Internal Revenue Code of 1986, as amended and the
regulations issued thereunder.
(6) COMMITTEE. The Committee appointed by the Board of
Directors of the Company pursuant to Section 10.1.
(7) COMPANY. IMC-Agrico MP, Inc., a Delaware corporation, and
any organization which shall succeed to the business of such corporation
and adopt the plan pursuant to Article 12.
(8) COMPENSATION. The base monthly salary paid to a
Participant. Except as otherwise specifically provided herein,
Compensation considered under the plan shall not be in excess of $150,000
annually, as adjusted by the Secretary in accordance with Section
401(a)(17) of the Code, taking into account for purposes of such
limitation any proration
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<PAGE>
required in situations where "family members" (as defined in Sections
401(a)(17) and 414(g)(6) of the Code and their Compensation must be
aggregated or where Compensation is computed with respect to a period less
than a full year (other than on account of mid-year commencement or
cessation of active participation in the Plan). For purposes of Article 4
the term "Compensation" shall have the meaning prescribed in Section
414(s) of the Code and for purposes of Article 5, the term "Compensation"
shall have the meaning prescribed by Section 415 of the Code.
(9) ADMINISTRATOR. The Plan Administrator appointed by the
Company pursuant to Section 10.2. and as defined in ERISA.
(10) DISTRIBUTEE. A person entitled to receive a distribution
from the trust under Article 8. A Distributee includes an Employee or
former Employee. In addition, the Employee's or former Employee's
surviving spouse or former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Article 13 and Section 414(p) of the Code, are Distributees with regard to
the interest of the spouse or former spouse.
(11) EMPLOYEE. An individual who is employed by an Employer and
shall include leased employees within the meaning of 414(n)(2) of the
Code. Notwithstanding the foregoing, if such leased employees constitute
less than 20% of an Employer's non-highly compensated work force within
the meaning of Section 414(n)(5)(c)(ii) of the Code, the term Employee
shall not include those leased employees covered by a plan described in
Section 414(n)(5) of the Code. Any person employed by a foreign
corporation shall be deemed to be an Employee of an Employer during his
period of employment by such foreign corporation if (i) not less than 20%
of the voting stock of such foreign corporation is owned by an employer;
(ii) the employer has entered into an agreement under Section 3121(1) of
the Code which applies to such foreign corporation; (iii) the employee is
a citizen or permanent resident of the United States; and (iv)
contributions under a funded plan of deferred compensation are not
provided by any other person with respect to the remuneration paid to such
person by such foreign corporation.
(12) EMPLOYER. The Company and any other corporation which
shall, with the consent of the Company, elect to participate in the Plan
in the manner described in Section 11.1 and any successor corporation
which shall adopt the Plan pursuant to Article 12. If any such
corporation shall withdraw from participation in the Plan pursuant to
Section 11.2, or shall terminate its participation in the
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<PAGE>
Plan pursuant to Section 15.3, such corporation shall thereupon cease to
be an Employer.
(13) EMPLOYER CONTRIBUTIONS. The contributions made by an
Employer pursuant to Section 5.1.
(14) INVESTMENT MANAGER. The investment manager who may be
appointed pursuant to Section 6.6.
(15) MATERNITY OR PATERNITY LEAVE. A leave of absence taken by
an Employee for any period by reason of such Employee's pregnancy, birth
of the Employee's child, placement of a child with the Employee in
connection with the adoption of such child or any absence for the purpose
of caring for such child for a period immediately following such birth or
placement. Leaves of absence taken in accordance with this subsection
shall not include any leave of absence which is deemed to be a short term
disability under the Short Term Disability Plan for Salaried Employees of
IMC-Agrico MP, Inc.
(16) MILITARY SERVICE. (a) Service in active duty in the armed
forces of the United States or any State thereof; (b) service in the armed
forces of the United States or of any State thereof under any compulsory
service law; or (c) service in the armed forces of the United States or
any of its allies in time of war in which the United States is engaged.
(17) PARTICIPANT. An Employee who has satisfied the requirements
set forth in Section 3.1, has elected to participate in the Plan pursuant
to Section 3.2, and whose participation has not terminated pursuant to
Section 3.3.
(18) PLAN. The Plan herein set forth, as from time to time
amended.
(19) PLAN ACCOUNT. The sum of a participant's Employer Account,
Employee Account, Salary Reduction Account and Rollover Account.
(20) PLAN YEAR. The accounting period of the Company for federal
income tax purposes.
(21) PRIOR PLANS. Investment Plan for Salaried Employees of IMC
Fertilizer, Inc., and Freeport-McMoRan Inc. Employee Capital Accumulation
Program, each as in effect immediately prior to the Effective Date.
(22) SALARY REDUCTION CONTRIBUTIONS. Contributions to the trust
pursuant to Section 4.1 by an Employer on behalf of an Active Participant
in lieu of current compensation.
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<PAGE>
(23) SERVICE. Any period of time beginning on the first day of
the month in which an individual's employment commences and ending on the
last day of the month in which his employment terminates; provided,
however, that Service for each Transferred Employee for purposes of
eligibility to participate and vesting in his benefits under the Plan,
respectively, shall include his service as calculated for such purposes
under the terms of the Prior Plan in which he participated immediately
prior to the date on which he became a Transferred Employee.
(24) TRANSFERRED EMPLOYEE. Each person who becomes an Employee
between July 1, 1993 and June 30, 1994 and who was an employee of IMC
Fertilizer, Inc. or Freeport-McMoRan Inc. immediately prior to the date on
which he first becomes an Employee.
(25) TRUST. The trust created by agreement between the employers
and the trustee, as from time to time amended.
(26) TRUSTEE. The trustee provided for in Section 6.1, or any
successor trustee or, if there shall be more than one trustee acting at
any time, all of such trustees collectively.
(27) TRUST FUND. All money and property of every kind held by
the trustee under the trust agreement.
(28) VALIDATION DATE. The last day of each calendar month.
(29) HIGHLY COMPENSATED EMPLOYEE. A participant or former
participant who is a highly compensated employee as defined in Code
Section 414(q), the requirements of which are herein incorporated into
this Plan by specific reference.
(30) FAMILY MEMBER. An individual described in Section
414(q)(6)(B) of the Code.
(31) NON-HIGHLY COMPENSATED EMPLOYEE. An Employee of the
Employer who is neither a Highly Compensated Employee nor a Family Member.
(32) ELIGIBLE ROLLOVER DISTRIBUTION. An Eligible Rollover
Distribution is any distribution of all or any portion of the balance to
the credit of the Distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series
of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or the
joint lives (or joint life expectancies) of the Distributee and the
Distributee's designated beneficiary, or for a specified period of ten
years or more;
-5-
<PAGE>
any distribution to the extent such distribution is required under Section
401(a)(9) of the Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to Employer securities).
(33) ELIGIBLE RETIREMENT PLAN. An Eligible Retirement Plan is an
individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a qualified trust
described in Section 4.01(a) of the Code, that accepts the Distributee's
eligible rollover distribution. However, in the case of an Eligible
Rollover Distribution to the surviving spouse, an Eligible Retirement Plan
is an individual retirement account or individual retirement annuity.
(34) DIRECT ROLLOVER. A Direct Rollover is a payment by the Plan
to the Eligible Requirement Plan specified by the Distributee.
ARTICLE 3
PARTICIPATION
SECTION 3.1. ELIGIBILITY REQUIREMENTS.
(a) TRANSFERRED EMPLOYEES. Each Transferred Employee shall have
his full account balance under the applicable Prior Plan transferred in cash to
this Plan as soon as practicable after such person becomes a Transferred
Employee and his interest in the amount so transferred (as adjusted from time to
time in accordance with the terms of the Plan) shall be fully vested and
nonforfeitable and shall be invested in the Funds described in Article 6 of this
Plan.
(b) ACTIVE PARTICIPANTS. A person who --
(1) is an Employee of an Employer;
(2) is paid on a salaried basis;
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<PAGE>
(3) is either regularly employed in the United States or is a
citizen of the United States;
(4) has an effective application under Section 3.2 on file with
the Committee; and
(5) is credited with one year of Service (as defined in subsection
(d) below);
shall be eligible to be a Participant in the Plan and shall commence active
participation on the date specified in subsection (c). A Participant who
discontinued contributions to a Prior Plan and is ineligible to participate in
the Prior Plan pursuant to the terms of such applicable plan may not become an
active Participant under this Plan until such period of ineligibility expires.
(c) COMMENCEMENT DATE FOR ACTIVE PARTICIPATION. A person who
has satisfied the conditions of subsection (b) above shall become an Active
Participant on the next January 1 or July 1 (whichever occurs first) following
the date such conditions are first satisfied. Notwithstanding the preceding
sentence, if such January 1 or July 1 occurs more than six months after a person
is credited with his first year of Service, Active Participation shall commence
on the first date the requirements of subsection (b) are satisfied.
(d) ELIGIBILITY SERVICE. An Employee of an Employer shall
satisfy the service requirement if he completes a year of service in the 12
month period beginning on the date of his employment, or if he completes a year
of service in any Plan Year subsequent to the date of his employment. If an
Employee terminates employment with an Employer and all affiliates, but
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<PAGE>
returns to such employment prior to incurring a Break in Service, the period
prior to and following such termination shall be credited as service. If an
Employee terminates employment with an Employer and all Affiliates prior to
completing a year of service, but returns to such employment at a later date,
all periods of his employment shall be credited as service. An Employee who has
once satisfied the eligibility requirement, terminates employment and later
returns to employment shall be eligible to participate in the Plan as of the
date of his reemployment Service for each Transferred Employee shall include his
service as calculated for such eligibility purposes under the terms of the Prior
Plan in which he participated immediately prior to the date on which he became a
Transferred Employee.
SECTION 3.2. APPLICATIONS. An eligible Employee under
Section 3.1(b) may become an Active Participant by filing a written application
with his Employer in the form prescribed by the Committee. Such application
must be filed at least 20 days prior to the date upon which participation is to
commence or, if participation is to commence on an effective date, such
application must be filed prior to a date to be prescribed by the Committee and
communicated to all eligible Employees.
Such application shall authorize the Employee's Employer to reduce his current
Compensation in the amount elected by the Employee pursuant to Article 4 and to
contribute the amount of such reduction to the Trust Fund and/or authorize the
Employee's Employer to deduct monthly contributions from the Employee's
Compensation in the amount specified by the Employee pursuant to
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Article 4. This application shall evidence the Employee's acceptance of and
agreement to all of the provisions of the Plan.
SECTION 3.3. TERMINATION OF PARTICIPATION. A Participant
shall continue as such until his termination of employment for whatever reason;
PROVIDED, HOWEVER, if a Participant shall be transferred from one Employer
to another or from an Employer to a corporation which is a member of the same
controlled group of corporations (within the meaning of Section 1563(a) of the
Code, determined without regard to Section 1563(a)(4) and (e)(3)(C)) as his
prior Employer or from an Employer to a corporation or other employing entity
which is under common control (within the meaning of Section 414(c) of the Code)
with his prior Employer, such transfer shall not terminate the Participant's
participation in the Plan and such Participant shall continue to participate in
the Plan until an event shall occur which would have terminated his
participation had he continued in the service of an Employer until the
occurrence of such event, but during any period during which he is not employed
by an Employer he shall not be an Active Participant and shall not be entitled
to make contributions to the Plan pursuant to Section 4.1.
SECTION 3.4. SAFE-HARBOR FOR LEASED EMPLOYEES.
Notwithstanding any other provisions of the Plan, for purposes of the
pension requirements of Section 414(n)(3) of the Code, the Employees of the
Employer shall include individuals defined as Employees in Paragraph 11 of
Article 2 of the Plan.
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SECTION 3.5. PARTICIPATION AND ACCRUAL - LEASED EMPLOYEES. A
leased employee within the meaning of Section 414(n)(2) of the Code shall not
become a Participant, or otherwise accrue benefits under the Plan, except as
otherwise specifically provided in the provisions of the Plan other than this
Article 3.
ARTICLE 4
EMPLOYEE CONTRIBUTIONS AND SALARY REDUCTION CONTRIBUTIONS
SECTION 4.1. CONTRIBUTIONS ALLOWED. A Participant shall
elect to participate in the Plan by a) Employee contributions effected by means
of payroll deduction and/or by b) all Employer Contributions to the Trust Fund
in an amount the Employee has agreed in writing to forego in current
Compensation. The latter contributions shall be known as Salary Reduction
Contributions.
(a) EMPLOYEE CONTRIBUTIONS
(1) Each Active Participant shall make a regular contribution
under the Plan. Such contribution shall only be effected by means of payroll
deductions each pay period of a whole dollar amount. Such dollar amount shall
be in percentage points ranging from 1% to 6% of the Active Participant's
Compensation.
(2) Each Active Participant who shall elect or authorize
contributions in an amount equal to 6% of his Compensation pursuant to paragraph
(a) and/or paragraph (b) of
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this Section shall be entitled, but shall not be required, to make an additional
contribution by means of payroll deductions only each pay period of a whole
dollar amount. Such dollar amount shall be in percentage points ranging from 1%
to 9% of the Active Participant's Compensation.
(3) If the aggregate dollar amount of the contribution made by an
Active Participant to paragraphs (1) and (2) of this Section is not evenly
divisible by five, it shall be increased to the nearest higher amount which is
so divisible. Contributions shall commence with the first payroll period ending
after participation commences. Contributions shall be transferred by the
Participant's Employer to the Trustee as of earliest date on which such
contributions can reasonably be segregated from the employer's general assets,
but in no event more than ninety (90) days from the date on which such amounts
would otherwise have been payable to the Participant in cash.
(b) SALARY REDUCTION CONTRIBUTIONS. An Employer shall
contribute to the Trust Fund on behalf of each Active Participant which he
employs, an amount equal to the amount the Active Participant has agreed in
writing to forego in current Compensation. A Participant may elect an amount
equal to percentage points of Compensation. The maximum percentage by which any
Participant may elect to forego in Compensation shall, be designated by the
Committee no later than 30 days prior to each January or July 1 but such
percentage shall in no event, exceed 15%. Notwithstanding the foregoing, no
contributions may be made under this paragraph, unless such contribution
complies
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with the provisions of Section 5.1(c) of this Plan and no contribution under
this subsection which is in excess of 6% of Compensation will be eligible for
further Employer contribution under Section 5.1(a).
If the aggregate dollar amount of the current Compensation reduction
made by an Active Participant pursuant to this paragraph is not evenly divisible
by five, it shall be increased to the nearest higher amount which is so
divisible.
An agreement to reduce current Compensation under this paragraph
shall be subject to rules and regulations governing such agreements as
promulgated by the Internal Revenue Service.
Notwithstanding anything in this Section to the contrary, no salary
reduction contribution percentage elected by a Participant may result in a
dollar amount which (together with amounts deferred under other cash or deferred
arrangements maintained by an Employer or Affiliate) will exceed $7313 in any
calendar year (or such larger amount for any calendar year as may be permitted
under Section 401(g) of the Code). In the event a Participant's contribution
under this Subsection exceeds the limits of Section 402(g) of the Code for any
calendar year or such contribution when combined with any other cash or deferred
arrangement contributions, such excess, if it occurs under this Subsection
4.1(b) shall be distributed to the Participant in accordance with Subsection
4.13. If such excess occurs as a result of contributions made under this
Subsection 4.1(b) when combined with any other cash or deferred arrangement
contributions made by the Participant under cash or deferred
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arrangement not maintained by an Employer or an Affiliate, then any refund will
be made upon timely and proper notification by the Participant to the Plan
Administrator of the amount to be refunded to the Participant in accordance with
Subsection 4.13.
(c) LIMITATIONS ON EMPLOYEE AND SALARY REDUCTION CONTRIBUTIONS.
A Participant's overall contribution, either by payroll deduction exclusively or
by payroll deduction in combination with salary reduction may not exceed 15% of
the Participant's Compensation and are nonforfeitable when made.
SECTION 4.2. CHANGES IN AMOUNT OF CONTRIBUTIONS.
CHANGES BY THE ACTIVE PARTICIPANT. The amount of the Compensation
reduction and/or the dollar amount of payroll deduction elected by an Active
Participant as a percentage of Compensation shall continue in effect until the
Active Participant changes his reduction agreement or his deduction. An Active
Participant may change the amount of his agreement or payroll deduction within
the limitations prescribed in Section 4.1 as of January 1 or July 1 of any year
by giving written directions to his Employer in the form prescribed by the
Committee, provided such direction is given at least 30 days prior to the
effective date of the change. If at any time an Active Participant's payroll
deduction shall exceed the maximum limitation prescribed in Section 4.1(a), it
shall be automatically reduced to the highest whole dollar amount which is
evenly divisible by five and which is not more than such maximum limitation.
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SECTION 4.3. AUTOMATIC SUSPENSION OF CONTRIBUTIONS. An
Active Participant's payroll deduction or by salary reduction contributions
shall be suspended automatically for the period and under the circumstances
specified in Section 8.1 and for any period during which the Active Participant
is absent without Compensation or is no longer an Active Participant.
SECTION 4.4. VOLUNTARY SUSPENSION OF CONTRIBUTIONS. Any Active
Participant may, by giving 30 days' written notice to his Employer, in the form
prescribed by the Committee, suspend his contributions (by payroll deduction or
salary reduction) effective as of the first day of the month which is at least
30 days after the date such notice has been given. Such a voluntarily suspended
Participant may, by giving 30 days' written notice to his Employer on a
prescribed form, regain active status in the Plan on the earlier of the next
January 1 or July 1 following the suspension of contributions for 12 months.
SECTION 4.5. ROLLOVER CONTRIBUTIONS. (a) With the consent of
the Administrator, amounts may be transferred from other qualified plans,
provided that the Trust from which such funds are transferred permits the
transfer to be made and, in the opinion of legal counsel for the Employers, the
transfer will not jeopardize the tax exempt status of the Plan or Trust or
create adverse tax consequences for the Employers. The amounts transferred
shall be set up in a separate account herein referred to as "Rollover Account".
Such account shall be fully vested at all times and shall not be subject to
forfeiture for any reason.
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(b) Amounts in a Participant's Rollover Account may not be
withdrawn by, or distributed to the Participant, in whole or in part, except as
provided in Paragraph (c) of this Section 4.5. The amount shall be credited in
participating units in accordance with the Participant's investment direction to
the appropriate sub-accounts of such Rollover Account. If a rollover
contribution is made by an eligible Employee prior to his becoming a
Participant, such Employee shall until such time as he becomes a Participant be
deemed to be a Participant for all purposes of the Plan except for purposes of
making contributions to the Plan pursuant to Section 4.1.
(c) Distributions from a Participant's Rollover Account may be made
only in accordance with Sections 8.6, 8.7 and 8.10 of the Plan and such
distributions shall be valued in accordance with Sections 7.3 through 7.6 as
applicable.
(d) For purposes of this Section 4.5 the term "amounts transferred
from other qualified plans" shall mean: (i) amounts transferred to this Plan
directly from another qualified plan; (ii) lump sum distributions received by an
Employee which are eligible for tax free rollover to a qualified plan and which
are transferred by the Employee to this Plan within sixty (60) days following
his receipt thereof; (iii) amounts transferred to this Plan from a conduit
individual retirement account provided that the conduit individual retirement
account has no assets other than assets which (A) were previously distributed to
the Employee by another qualified corporate (and, after December 31, 1983,
noncorporate) plan as a lump-sum distribution, (B) were eligible
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for tax free rollover to a qualified corporate or noncorporate plan and (C) were
deposited in such conduit individual retirement account within sixty (60) days
of receipt thereof and other than earnings on said assets; and (iv) amounts
distributed to the Employee from a conduit individual retirement account meeting
the requirements of clause (iii) above, and transferred by the Employee to this
Plan within sixty (60) days of his receipt thereof from such conduit individual
retirement account. Prior to accepting any transfers to which this Section
applies, the Administrator may require the Employee to establish that the
amounts to be transferred to this Plan meet the requirements of this Section and
may also require the Employee to provide an opinion of counsel satisfactory to
the Employers that the amounts to be transferred meet the requirements of this
Section.
(e) For purposes of this Section, the term "qualified plan" shall
mean any tax qualified plan under Code Section 401(a).
(f) Notwithstanding anything herein to the contrary, this Plan
shall not accept any direct transfers from a defined benefit plan, money
purchase plan (including a target benefit plan), stock bonus or profit sharing
plan which would otherwise have provided for a life annuity form of payment to
the Participant.
SECTION 4.6. CONTRIBUTION PERCENTAGE.
(a) The Average Contribution Percentage for Eligible Participants
who are Highly Compensated Employees for the Plan Year shall not exceed the
Average Contribution Percentage for
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Eligible Participants who are Non-Highly Compensated Employees for the Plan Year
multiplied by 1.25; or
(b) The Average Contribution Percentage for Eligible Participants
who are Highly Compensated Employees for the Plan Year shall not exceed the
Average Contribution Percentage for Eligible Participants who are Non-Highly
Compensated Employees for the Plan Year multiplied by 2, and the Average
Contribution Percentage for Eligible Participants who are Highly Compensated
Employees shall not exceed the Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees by more than two (2)
percentage points, or in any event, such lesser amount as described in Section
4.15.
SECTION 4.7. DEFINITIONS. For purposes of Section 4.6 and
succeeding subsections of this Section 4, the following definitions shall apply
unless otherwise specifically provided.
(a) "CONTRIBUTION PERCENTAGE" shall mean the average (expressed
as percentage) of the Contribution Percentages of the Eligible Participants in a
group.
(b) "CONTRIBUTION PERCENTAGE" for any Eligible Participant shall
mean the ratio (expressed as a percentage), of the sum of the Employee
Contributions and Employer Contributions under the Plan on behalf of the
Eligible Participant for the Plan Year to the Eligible Participant's
Compensation while a Participant in the Plan for the Plan Year.
(c) "ELIGIBLE PARTICIPANT" for any Plan Year shall mean any
Employee of the Employer who is otherwise authorized under the terms of the Plan
to make Employee Contributions or to
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have Employer Contributions allocated to his account for the Plan Year without
regard to whether such Employer elects to make Employee Contributions or to have
Employer Contributions allocated to his account for the year without regard to
whether such Employee elects to make contributions or whether contributions are
allocated to his account for the year.
SECTION 4.8. SPECIAL RULES.
(a) For purposes of Section 4.6, the Contribution Percentage for
any Eligible Participant who is a Highly Compensated Employee for the Plan Year
and who is eligible to participate in two or more plans described in Section
401(m) of the Code that are maintained by the Employer or an Affiliate shall be
determined as if all such contributions were made under a single plan. If the
plans have different plan years, the provisions of this paragraph (a) shall be
applied by treating all plans whose plan years end with or within the same
calendar year as a single plan.
(b) In the event that this Plan satisfies the requirements of
Section 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of
Section 410(b) of the Code only if aggregated with this Plan, then this Section
4 shall be applied by determining the Contribution Percentages of Eligible
Participants as if all such plans were a single plan; provided, however, that
such plans may be aggregated to satisfy Section 401(m) of the Code only if they
have the same plan year.
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(c) For purposes of determining the Contribution Percentage of an
Eligible Participant who is a Highly Compensated Employee, the Employee
Contributions, Employer Contributions and Compensation of such Participant shall
include Employee Contributions, Employer Contributions and Compensation of
Family Members to the extent required by Section 401(m) of the Code and the
regulations issued thereunder.
(d) The determination and treatment of the Contribution Percentage
of any Participant shall satisfy such other requirements as may be prescribed by
the Secretary of the Treasury.
SECTION 4.9. DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS.
(a) IN GENERAL. Notwithstanding any other provision of the Plan, Excess
Aggregate Contributions and income allocable thereto shall be distributed under
the leveling method of Treas. Reg. Section 1.401(m)-1(e)(2) no later than the
last day of each Plan Year, to Participants to whose accounts Employee
Contributions or Employer Contributions were allocated for the preceding Plan
Year.
(b) EXCESS AGGREGATE CONTRIBUTIONS. For purposes of this Plan,
"Excess Aggregate Contributions" shall mean the amount described in Section
401(m)(6)(B) of the Code.
(c) DETERMINATION OF INCOME. The income allocable to Excess
Aggregate Contributions shall be determined by multiplying the income allocable
to the Participant's Employee Contributions and Employer Contributions for the
Plan Year by a fraction, the numerator of which is the Excess Aggregate
Contributions on
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behalf of the Participant for the Plan Year and the denominator of which is the
sum of the Participant's account balances attributable to Employee Contributions
and Employer Contributions as of the end of the Plan Year, reduced by the gain
allocable to such total amount for the Plan Year and increased by the loss
allocable to such total amount for the Plan Year.
(d) MAXIMUM DISTRIBUTION AMOUNT. The Excess Aggregate
Contributions to be distributed to a Participant shall be adjusted for income,
and, if there is a loss allocable to the Excess Aggregate Contribution, shall in
no event be less than the lesser of the Participant's account under the Plan or
the Participant's Employee Contributions and Employer Contributions for the Plan
Year.
(e) ACCOUNTING FOR EXCESS AGGREGATE CONTRIBUTIONS. Excess
Aggregate Contributions shall be distributed from the Participant's Employee
Account, and Employer Account, in proportion to the Participant's Employee
Contributions and Employer Contributions for the Plan Year.
SECTION 4.10. DEFERRAL PERCENTAGE.
(a) The Average Deferral Percentage for Eligible Participants who
are Highly Compensated Employees for the Plan Year shall not exceed the Average
Deferral Percentage for Eligible Participants who are Non-Highly Compensated
Employees for the Plan Year multiplied by 1.25; or
(b) the Average Deferral Percentage for Eligible Participants who
are Highly Compensated Employees for the Plan Year shall not exceed the Average
Deferral Percentage for
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Eligible Participants who are Non-Highly Compensated Employees for the Plan Year
multiplied by 2, provided that the Average Deferral Percentage for Eligible
Participants who are Highly Compensated Employees does not exceed the Average
Actual Deferral Percentage for Eligible Participants who are Non-Highly
Compensated Employees by more than two (2) percentage points or, in any event,
such lessor amount as described in Section 4.15.
SECTION 4.11. DEFINITIONS. For purposes of Section 4.10 and
succeeding subsections in Section 4, the following definitions shall apply,
unless otherwise specifically provided.
(a) "AVERAGE DEFERRAL PERCENTAGE" shall mean the average
(expressed as a percentage) of the Deferral Percentages of the Eligible
Participants in a group.
(b) "DEFERRAL PERCENTAGE" for any Eligible Participant shall mean
the ratio (expressed as a percentage), of Salary Reduction Contributions on
behalf of the Eligible Participant for the Plan Year to the Eligible
Participant's Compensation for the Plan Year.
(c) "ELIGIBLE PARTICIPANT" for any Plan Year shall mean any
Employee of the Employer who is otherwise authorized under the terms of the Plan
to have Salary Reduction Contributions allocated to his account for the Plan
Year without regard to whether such Employee elects to have such contributions
allocated to his account for the year.
SECTION 4.12. SPECIAL RULES.
(a) For purposes of Section 4.10 and succeeding subsections in
Section 4, the Deferral Percentage for any
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Eligible Participant who is a Highly Compensated Employee for the Plan Year and
who is eligible to participate in two or more plans or arrangements described in
Section 401(k) of the Code that are maintained by the Employer or an Affiliate
shall be determined as if all such contributions were made under a single plan.
If the plans have different plan years, the provisions of this paragraph (a)
shall be applied by treating all plans whose plan years end with or within the
same calendar year as a single plan.
(b) For purposes of determining the Actual Deferral Percentage of a
Participant who is a Highly Compensated Employee, the Salary Reduction
Contributions and Compensation of such Participant shall include the Salary
Reduction Contributions and Compensation of Family Members to the extent
required by Section 401(k) of the Code and the regulations thereunder.
(c) The determination and treatment of the Salary Reduction
Contributions and Actual Deferral Percentage of any Participant shall satisfy
such other requirements as may be prescribed by the Secretary of the Treasury.
SECTION 4.13. DISTRIBUTION OF EXCESS DEFERRALS.
(a) Notwithstanding any other provision of the Plan, in the event
a Participant has Excess Deferral Amounts under the Plan for any calendar year,
such Excess Deferral Amounts and income allocable thereto in accordance with
Treas. Reg. Section 1.402(g)-1(d)(5) shall be distributed to the Participant no
later than the April next following the year in which such Excess Deferral
Amounts arose in accordance with the following
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provisions of this Subsection 4.13 who claim such Allocable Excess Deferral
Amounts for the preceding calendar year.
(b) For purposes of this Section "Excess Deferral Amount" for any
calendar year shall mean (i) the amount of Salary Reduction Contributions for
that calendar year which exceed the limits of Section 402(g) of the Code when
combined with any contributions made pursuant to any other cash or deferred
arrangements maintained by an Employer or any Affiliate, and (ii) the amount of
Excess Deferrals that the Participant allocates to this Plan pursuant to the
claim procedure set forth in (c) below.
(c) The Participant's claim with respect to Excess Deferral
Amounts for any calendar year shall be in writing, shall be submitted to the
Plan Administrator no later than March 1 of the year following the year in which
such excess arose; shall specify the Participant's Excess Deferral Amount for
the preceding calendar year; and shall be accompanied by the Participant's
written statement that if such amounts are not distributed, such Excess Deferral
Amount, when added to amounts deferred under other plans or arrangements
described in Sections 401(k), 408(k) or 403(b) of the Code which are not
maintained by an Employer or an Affiliate, exceeds the limit imposed on the
Participant by Section 402(g) of the Code for the year in which the deferral
occurred.
(d) MAXIMUM DISTRIBUTION AMOUNT. The Excess Deferral Amount
distributed to a Participant with respect to a calendar year shall be adjusted
for income and, if there is a loss
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allocable to the Excess Deferral, shall in no event be less than the lesser of
the Participant's account under the Plan or the Participant's Salary Reduction
Contributions for the Plan Year.
SECTION 4.14. DISTRIBUTION OF EXCESS CONTRIBUTIONS.
(a) IN GENERAL. Notwithstanding any other provision of the Plan,
Excess Contributions and income allocable thereto shall be distributed under the
leveling method of Treas. Reg. Section 1.401(k)-1(f)(12) no later than the last
day of each Plan Year to Participants on whose behalf such Excess Contributions
were made for the preceding Plan Year.
(b) EXCESS CONTRIBUTIONS. For purposes of this amendment,
"Excess Contributions" shall mean the amount described in Section 401(k)(8)(B)
of the Code.
(c) DETERMINATION OF INCOME. The income allocable to Excess
Contributions shall be determined by multiplying income allocable to the
Participant's Salary Reduction Contributions for the Plan Year by a fraction,
the numerator of which is the Excess Contribution on behalf of the Participant
for the Plan Year and the denominator of which is the sum of the Participant's
account balances attributable to Salary Reduction Contributions on the last day
of the preceding Plan Year.
(d) MAXIMUM DISTRIBUTION AMOUNT. The Excess Contributions which
would otherwise be distributed to the Participant shall be adjusted for income;
shall be reduced, in accordance with regulations, by the amount of Excess
Deferrals previously distributed to the Participant; and, if there is a loss
allocable to the Excess Contributions, shall in no event be
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less than the lesser of the Participant's account under the Plan or the
Participant's Salary Reduction Contributions for the Plan Year.
(e) ACCOUNTING FOR EXCESS CONTRIBUTIONS. Amounts distributed
under this Section 4 shall, solely for accounting purposes under the Plan, first
be treated as distributions from the Participant's Salary Reduction Account.
SECTION 4.15. AGGREGATE RULE. The tests referenced in Section
4.6 and 4.10 shall each be applied independently.
If the tests specified in Section 4.6(b) and 4.10(a) are used, then
the sum of the Average Contribution Percentages and Average Deferral Percentages
of Highly Compensated Employees may not exceed the greater of:
(a) the sum of:
(1) the sum of 1.25 times the greater of the Average
Contribution Percentage or the Average Deferral Percentage of Non-Highly
Compensated Employees, and
(2) two percentage points plus the lesser of the Average
Deferral Percentage and the Average Contribution Percentage of the
No-Highly Compensated Employees, but in no event more than two times the
lesser of the Average Deferral Percentage and the Average Contribution
Percentage of the Non-Highly Compensated Employees; or
(b) the sum of:
(1) the sum of 1.25 times the lesser of the Average
Contribution Percentage or the Average Deferral Percentage of Non-Highly
Compensated Employees, and
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(2) two percentage points plus the greater of the Average
Deferral Percentage and the Average Contribution Percentage of the
Non-Highly Compensated Employees, but in no event more than two times the
greater of the Average Deferral Percentage and the Average Contribution
Percentage of the Non-Highly Compensated Employees.
If the limitation described immediately above is exceeded, then the
tests described in Section 4.6 and 4.10 must be applied by using only the test
of Section 4.6(a) or Section 4.10(b). If such test cannot be met then the
reduction methods described in Section 4 shall be applied.
ARTICLE 5
EMPLOYER CONTRIBUTIONS
SECTION 5.1. AMOUNT OF CONTRIBUTIONS. (a) Subject to the
limitations set forth in subsection (c) and Section 5.2, each Employer shall
contribute on the last day of each calendar month or as shortly thereafter as
possible, for and on account of each Active Participant employed by such
Employer on the last day of each calendar month, an amount which shall be
determined by the Board of Directors of the Company and which shall, in no
event, be less than 20% of the amount contributed during the month by such
Active Participant pursuant to Sections 4.1(a) and/or 4.1(b) up to 6% of the
Active Participant's compensation. Notwithstanding the foregoing, contributions
by an Employer shall be delivered no later than the due date, including
extensions, for the Employer's federal income tax return for such fiscal
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year. Employer contributions made pursuant to this paragraph (a) shall be
allocated to the Employer account of each Active Participant.
(b) Subject to the limitations set forth in subsection (c) and
Section 5.2, each Employer may make an additional contribution at the end of
each fiscal year of the Employer in an amount equal to a percentage, determined
by the Board of Directors of the Company, of each Active Participant's
contributions made to the Plan during the Employer's fiscal year pursuant to
Sections 4.1(a) and/or 4.1(b) up to 6% of each Active Participant's
Compensation. Contributions made pursuant to this paragraph (b) shall be
allocated to the Employer account of each Active Participant who was employed by
and Employer on the last day of the Employer's fiscal year. Employer
contributions made pursuant to this Section shall be delivered to the Trustee no
later than the due date, including extensions thereof, for the Employer's
federal income tax return for such fiscal year.
(c) (1) No contribution shall be made pursuant to subsection (a)
with respect to any month unless the total of all contributions by Employers to
be made pursuant to said subsection (a) with respect to that month plus the
total of the contributions by Employers pursuant to such subsection (a) for the
preceding months shall not exceed the current or accumulated profits (retained
earnings) of the Company.
(2) No contribution shall be made pursuant to subsection (b) on
account of a fiscal year which would cause a total amount of all contributions
by Employers for that fiscal
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year to exceed the current or accumulated profits (retained earnings) of the
Company.
(3) No contribution shall be made by an Employer pursuant to
subsection (a) or subsection (b) of this Section or Section 4.1(b) which exceeds
the current profits or accumulated profits (retained earnings) of such Employer
at the time such contribution is made; PROVIDED, HOWEVER, that if any
Employer other than the Company shall be prevented from making a contribution on
behalf of its Employees under the Plan because its current and accumulated
profits (retained earnings) are insufficient to make the required contribution,
the Company shall make from its current profits or accumulated profits (retained
earnings) the contribution which such Employer is so prevented from making
provided both such corporations are at the time such contribution is made
members of an affiliated group of corporations which shall file a consolidated
federal income tax return for the taxable period for which such contribution is
made. For purposes of this paragraph (3), current profits and accumulated
profits (retained earnings) of an Employee shall be determined in accordance
with generally accepted accounting principles.
(4) For the purposes of this Section, current or accumulated
profits (retained earnings) shall be determined in accordance with generally
accepted accounting principles.
(5) An Employer may decline to make a contribution on behalf of a
Participant if it or the Company determines that such contribution may result
in an excess contribution under Section
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5.2 or may be discriminatory within the meaning of Section 401(a)(4) of the
Code.
(6) All Employer contributions are nonforfeitable when made.
SECTION 5.2. STATUTORY LIMITATIONS ON CONTRIBUTIONS. (a)
DEFINITION OF ANNUAL ADDITIONS. For purposes of the plan, "Annual Addition"
shall mean the amount allocated to a Participant's account during the Limitation
Year which constitutes:
(i) Employer Contributions.
(ii) Employee Contributions.
(iii) Forfeitures, and
(iv) Amounts described in Sections 415(1)(1) and 419(A)(d)(2) of
the Code.
(b) MAXIMUM ANNUAL ADDITION. The maximum Annual Addition that
may be contributed or allocated to a Participant's account under the Plan for
any Limitation Year shall not exceed the lesser of:
(i) the Defined Contribution Dollar Limitation , or
(ii) 25 percent of the Participant's Compensation, within the
meaning of Section 415(c)(3) of the Code for the Limitation
Year, determined without regard to the limitation under
Section 401(a)(17) of the Code;
and if the Participant also participates in a defined benefit plan maintained by
his Employer the sum of (c) and (d) below shall not exceed 1.0.
(c) The aggregate Annual Additions as of the close of such Plan
Year to the Participant's Plan Account and in all other defined contribution
plans maintained by his Employer divided by
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the lesser of or under other facts and circumstances, the Annual Additions to a
Participant's Account in fact exceed either of the limitations described in
5.2(b) for a Plan Year, the excess amount shall be deposited in a suspense
account for such Plan Year. Such suspense account shall remain invested in the
Money Market Fund and shall be allocated during succeeding Plan Years among the
Participant's Account until the amount in such suspense account is exhausted.
If, during a Plan Year more than one suspense account created pursuant to this
Section shall exist, allocation of the amounts contained in such accounts shall
be allocated in the order of the Plan Years to which such accounts relate. Such
excess amount or amounts shall be used to reduce Employer Contributions under
Article 5 for the next Limitation Year (and succeeding Limitation Years, if
necessary) for all of the remaining Participants in the Plan.
If the limitation in the second clause of Section 5.2(b) is
exceeded, the benefit under the defined benefit plans shall be reduced until the
requirements of the second clause are satisfied.
SECTION 5.3. LIMITATION YEAR. For purposes of Section 5.2,
"Limitation Year" shall mean the Plan Year.
ARTICLE 6
TRUST AND INVESTMENT PROVISIONS
SECTION 6.1. TRUSTEE. A Trust shall be created by the
execution of a trust agreement between the Employers and the Trustee. All
Employer and Employee contributions under the Plan shall be paid to the Trustee,
and the Trustee shall have
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responsibility for the custody and investment thereof in accordance with the
provisions of the Trust Agreement. The Trustee shall make distributions
from the Trust Fund at such time or times, to such persons and in such amounts
as the manager shall direct in writing.
The Company shall have the sole right to determine the form and
terms of the Trust agreement, to amend such agreement at any time and from time
to time, and to remove any Trustee or Trustees and select their successors.
Trust assets shall be valued at least annually at the close of each
Plan Year.
SECTION 6.2. INVESTMENT OF CONTRIBUTIONS. Each Participant
shall, by written direction to the Administrator, direct that his contributions
together with all Employer Contributions made on his behalf be invested by the
Trustee either entirely in one of the following funds or in increments of no
less than 25% to any combination of four of the following funds:
(a) An Equity Fund which shall be invested in the Fidelity Equity
Income Fund, Inc.
(b) A Bond Fund which shall be invested in the Bond Fund of
America.
(c) A Fixed Income Fund under which the funds shall be entrusted
to one or more insurance companies or banks, and/or to a portfolio of guaranteed
insurance contracts or other capital preservation investments of different
maturities and interest rates in which a group of retirement or savings plans
may
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participate, to be chosen at the sole discretion of the Committee, which
companies and/or banks, as applicable, pursuant to a contract or contracts or
other arrangements to be approved by the Committee, will invest the funds
according to its sole discretion at fixed or floating rate of interest on the
invested funds.
(d) A Money Market Fund under which the funds shall be entrusted
to an insurance company or an investment company to be chosen at the sole
discretion of the Committee, which company, pursuant to a contract or in
accordance with a prospectus approved by the Committee, will invest the funds in
short-term United States government and agency obligations, bank certificates of
deposit and bankers' acceptances, and high quality corporate obligations.
Any amounts transferred to the Plan on behalf of any Participant who is a
Transferred Employee shall initially be invested in the funds in the same
proportion that the Account to which such transferred amounts are allocated (as
determined in accordance with Section 7.1) is invested. Thereafter, investment
of such transferred amounts shall be subject to the same terms and conditions as
other amounts credited to the Participant's Account.
SECTION 6.3. CHANGE IN INVESTMENT DIRECTION. Once given, an
investment direction may not be withdrawn or rescinded except as provided in
this Section, and any such investment direction shall continue in effect until
changed pursuant to this Section. A Participant may elect to change his
investment
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direction and/or transfer as of January 1, April 1, July 1 and October 1, his
existing account balances in any fund or funds to any other fund or in
increments of no less than 25% of such account balances and/or contributions to
any combination up to four funds so long as the aggregate amount so transferred
or directed is transferred to or directed to no more than one fund or in
increments of 25% to any combination up to four funds.
Notwithstanding any other provision of this Section 6.3 or the Plan
to the contrary no transfer of existing account balances shall be permitted by a
Participant between the Fixed Income Fund and the Bond Fund or the Money Market
Fund or between the Bond Fund or the Money Market Fund and the Fixed Income Fund
on any January 1, April 1, July 1, or October 1.
Written notice of any change in investment direction shall be given
at least thirty (30) days prior to the effective date of any such change to the
Administrator in the form prescribed by the Administrator.
SECTION 6.4. INVESTMENT INCOME. The income of each fund shall
be added to such fund and the fund shall be invested and reinvested without
distinction between principal and income.
SECTION 6.5. EXPENSES OF FUNDS. All charges and expenses
incurred in connection with the purchase and sale of investments for a fund
shall be charged to such fund.
SECTION 6.6. INVESTMENT MANAGER. The Company may appoint an
individual, or individuals, firm or corporation, which
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shall be known as the Investment Manager or Investment Managers, and which may
be responsible, within the limitations set forth in the trust agreement, for
selecting the investments to be made for one or more of the Stock Fund, the Bond
Fund, the Fixed Income Fund, and the Money Market Fund. The Investment Manager
for a fund may either direct the Trustee to make sales or investments or make
sales and investments with respect to such funds and direct the Trustee to take
all necessary action to complete such sales and investments.
Upon appointment or as soon as practicable after appointment, the
Company and each Investment Manager it has appointed shall enter into a written
agreement, which agreement shall include the following terms and conditions:
(a) The Company shall have the right, at any time, with or without
cause, to remove the Investment Manager. The Investment Manager may resign and
such resignation shall be effective upon delivery of a written resignation to
the Company. Upon the resignation, removal or failure or inability for any
reason of the Investment Manager to act hereunder, the Company may appoint a
successor. All successor Investment Managers shall have all of the rights and
privileges and all of the duties of their predecessors, but shall not be held
accountable for the acts of their predecessors.
(b) An Investment Manager shall discharge his duties (i) solely in
the interest of Participants and Beneficiaries, (ii) for the exclusive purpose
of providing benefits to Participants and their Beneficiaries and of defraying
reasonable
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expenses of administering the Plan, and (iii) 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.
(c) The Investment Manager shall maintain accurate and detailed
records of all investment directions given to the Trustee, and of sales and
investments made by the Investment Manager with regard to the funds, which shall
be available at all reasonable times for inspection by any person designated by
the Committee or the Company. The Investment Manager, at the direction of the
Committee or the Company, shall submit to the Committee, to the Company, to the
Company's auditors and to others designated by the Committee, such reports or
other information as they may reasonably require.
In the event that an Investment Manager has not been appointed for
any one or more of the Stock Fund, the Bond Fund, the Guaranteed Income Fund, or
the Money Market Fund, the Committee shall direct the Trustee with respect to
investments for any such fund until an Investment Manager has been appointed for
such fund.
ARTICLE 7
PARTICIPANTS' PLAN ACCOUNT
SECTION 7.1. PLAN ACCOUNT AND VESTING. Participants' Plan
Accounts are measured in dollars as follows:
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(a) PLAN ACCOUNT. The Committee shall establish and
maintain, or shall cause to be established and maintained by
such agent or agents as it shall select for this purpose, the
following accounts on behalf of each Participant:
(1) EMPLOYER ACCOUNT. This account shall reflect the
value (in dollars) of all Employer Contributions made pursuant
to Section 5.1, of contributions described in Section 7.8 and,
if the Participant is a Transferred Employee, amounts which
are attributable to employer contributions which are
transferred on behalf of the Participant to this Plan from the
applicable Prior Plan; all investment earnings, gains,
expenses and losses (realized and unrealized), and the amount
of any withdrawals and distributions from the account.
(2) EMPLOYEE ACCOUNT. This account shall reflect the
value (in dollars) of contributions made pursuant to Section
4.1(a) of the Plan and, if the Participant is a Transferred
Employee, amounts which are attributable to employer
contributions which are transferred on behalf of the
Participant to this Plan from the applicable Prior Plan, the
investment earnings, gains, expenses and losses (realized and
unrealized), and the amount of withdrawals and distributions
from this account.
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(3) SALARY REDUCTION ACCOUNT. This account shall
reflect the value (in dollars) of amounts contributed under
Section 4.1(b) and, if the Participant is a Transferred
Employee, amounts which are attributable to salary reduction
contributions which are transferred on behalf of the
Participant to this Plan from the applicable Prior Plan,
investment earnings, gains, expenses and losses (realized and
unrealized), and the amount of any withdrawals and
distributions from the account.
(4) ROLLOVER ACCOUNT. This account shall reflect the
value (in dollars) of amounts contributed under Section 4.5
and, if the Participant is a Transferred Employee, amounts
which are attributable to rollover contributions which are
transferred on behalf of the Participant to this Plan from the
applicable Prior Plan, investment earning, gains, expenses and
losses (realized and unrealized), and the amount of any
withdrawals or distributions form the account.
Each of the foregoing accounts shall be composed of a Stock Fund
Sub-Account, a Bond Fund Sub-Account, a Fixed Income Fund Sub-Account, and a
Money Market Fund Sub-Account. Such Accounts and Sub-Accounts shall be solely
for accounting purposes, and there shall be no segregation of assets of the
funds among separate accounts. The books of account, form and
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accounting methods used in the administration of Participants' accounts shall be
the sole responsibility of, and shall be subject to the supervision and control
of, the Committee.
(b) VESTING. Participants shall have a full and immediate
nonforfeitable interest in the value of their accounts.
SECTION 7.2. DOLLARS.
(a) The interest of Participants in the funds shall be measured by
dollars in the particular fund, with gain or loss determined as of each
Valuation Date as provided in the succeeding subsections. Each dollar shall
have an equal beneficial interest in the fund, and none shall have priority or
preference over any other.
(b) One dollar is allocated to the Employer Account maintained for
each Participant for each dollar paid to the trust on behalf of such Participant
by an Employer prior to the first Valuation Date, one dollar is allocated to the
Employee Account maintained for each Participant for each dollar paid to the
trust by such Participant by means of payroll deductions pursuant to Article 4
prior to such date and one dollar is allocated to each of the applicable
Accounts of each participant for each dollar that is transferred to the trust
from the applicable Prior Plan on behalf of the Participant prior to such date.
Dollars so allocated to Accounts are allocated to the appropriate sub-accounts
comprising such Accounts in accordance with the Participants' directions made
pursuant to Section 6.2. As soon
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as practicable after the first Valuation Date, the Trustee shall determine the
value of each fund as of such Valuation Date in the manner prescribed in Section
7.4, and the gain or loss so determined is divided by the total number of
dollars allocated to the accounts and sub-accounts of such fund maintained for
Participants in accordance with the preceding sentence. The resulting quotient
is the value of a dollar in such fund as of such Valuation Date and constitutes
the initial gain or loss of a dollar in such fund. Fractional dollars shall be
calculated to six decimal place. Employer Contributions due but not received by
the Trustee on a Valuation Date shall not be taken into account for purposes of
determining the gain or loss of dollars under this subsection.
(c) If a Participant's interest in a fund or any part thereof is
distributed, within or transferred to an interest account pursuant to Article 8
of the Plan, the number of dollars representing such interest or portion thereof
as of the applicable Valuation Date shall be cancelled for purposes of any
subsequent determination of the gain or loss of dollars in such fund.
SECTION 7.3. VALUATION OF FUNDS.
The value of a fund as of any Valuation Date shall be the fair
market value of all assets (including any uninvested cash) held by the fund as
determined by the Trustee on the basis of such evidence and information as it
may deem pertinent and reliable, reduced by the amount of any accrued
liabilities of the fund on such Valuation Date. The Trustee's determination of
fair
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market value shall be binding and conclusive upon all parties. Employer
Contribution due but not received by the Trustee on a Valuation Date shall not
be taken into account in valuing the fund. Salary reduction contributions
pursuant to Section 4.1(b) which have been withheld from Active Participants'
Compensation which have not been received by the Trustee on a Valuation Date and
which, when received, would be part of the assets of the fund, shall be taken
into account in valuing the fund.
SECTION 7.4. VALUATION OF FUND SUB-ACCOUNTS AS OF A VALUATION
Date. The value of a Participant's fund sub-accounts as of any Valuation Date
shall be the dollars allocated or allocable to each sub-account as of such
Valuation Date plus any Employer Contribution payable on his behalf with respect
to a period ending on or prior to the Valuation Date but not yet paid to the
Trustee on such Valuation Date, and which, when paid, would be allocable to such
fund sub-accounts.
SECTION 7.5. VALUATION OF FUND SUB-ACCOUNTS ON OTHER THAN A
Valuation Date. The value of a Participant's fund sub-accounts as of any given
date other than a Valuation Date shall be the value determined pursuant to
Section 7.2 of said accounts on the next occurring Valuation Date.
SECTION 7.6. VALUE OF PLAN ACCOUNTS. The value of a
Participant's Plan Account as of any Valuation Date shall be the sum of the
values of the sub-accounts comprising the Participant's Account as described in
Section 7.1(a).
SECTION 7.7. COMMITTEE TO FURNISH ANNUAL STATEMENTS OF VALUE OF
Plan Accounts. The Committee shall, not less frequently
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than annually, deliver to each Participant a statement setting forth the Account
balances for such Participant.
SECTION 7.8. TRANSFERS FROM HOURLY SAVINGS AND PROFIT SHARING
PLANS. If a person who is a Participant in any savings or profit sharing plan
for hourly employees of the Company ("Hourly Plans") shall cease to be an
eligible employee under any such plan, as defined in such plan, but pursuant to
the terms of such plan such person is not entitled to receive a distribution
from such plan, he becomes eligible to and elects to become a Participant in
this Plan ad elects pursuant to the provisions of such Hourly Plan to have his
interest in such plan transferred on or after July 1, 1993, to the Trustee to be
held, invested and reinvested and distributed pursuant to the terms of this Plan
and the Trust, then, as of the date of the transfer of any such Participant's
interest in such Hourly Plan, there shall be credited to the Employee Account of
such Participant that portion of his interest in such Hourly Plan which is
transferred to the Trustee and which represents his contributions to such Plan
and there shall be credited to the Employer Account of such Participant that
portion of his interest in such Hourly Plan which is transferred to the Trustee
and which represents contributions made by his Employer, if any, on his behalf
to such plan, there shall be credited to the Salary Reduction Account of such
Participant that portion of his interest in such Hourly Plan which is
transferred to the Trustee and which represents salary reduction contributions,
if any, to such plan and there shall be credited to the Rollover Account of such
Participant that portion
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of his interest in such Hourly Plan which is transferred to the Trustee and
which represents rollover contributions, if any, to such plan. Any amounts
credited to a Participant's Employee Account, Employer Account, Salary Reduction
Account or Rollover Account shall be applied by crediting dollars to such
account, the dollars credited to the Employee Account to be credited in
accordance with the investment direction made by the Participant upon his
election to participate in this Plan of the appropriate sub-accounts of such
account. Notwithstanding any provision of any Hourly Plan to the contrary, upon
a Participant's termination of employment, his total interest in this Plan,
including any amount transferred from the Hourly Plan, shall be distributed
pursuant to the provisions of Article 8 of this Plan.
ARTICLE 8
WITHDRAWALS, DISTRIBUTION, AND LOANS
SECTION 8.1. WITHDRAWAL OF EMPLOYEE CONTRIBUTIONS. As of any
given date, a Participant may elect to withdraw not less than 50% of the value
as of such date of the value of his Employee Account. Such an election shall be
made by giving written notice, specifying the requested date of withdrawal and
the portion of the amount withdrawn to be paid from each of the fund
sub-accounts comprising the Participant's Employee Account, to the Plan
Administrator in the form prescribed by the Plan Administrator at least 30 days
prior to such date. The value of the Participant's Employee Account as of the
requested date of withdrawal shall be determined pursuant to Section 7.4 or
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Section 7.5, whichever is applicable. A Participant who makes such a withdrawal
shall be ineligible to make further contributions under the Plan either by
payroll deduction or by salary reduction until the Valuation Date is at least
one year subsequent to the date of such withdrawal.
Section 8.2. (a) HARDSHIP WITHDRAWAL FROM EMPLOYER AND EMPLOYEE
ACCOUNTS. As of any given date a Participant may make a request to withdrawal
a portion of the combined value of his Employer and Employee; PROVIDED,
HOWEVER, that if the amount of such withdrawal is less than such combined
value, such amount shall be applied first to reduce the value of his Employee
Account and then his Employer Account. Such request shall be made in writing,
specifying the requested date of withdrawal (which shall be not less than 30
days nor more than 60 days after the date of such request) and the portion of
such requested amount to be paid from each of the fund sub-accounts comprising
the Participant's Employee and Employer Accounts, to the Administrator on a form
prescribed by him. The value of a Participant's Employee and Employer Accounts
and of the sub-accounts comprising such Accounts shall be determined pursuant to
Sections 7.4, 7.5 and 7.6 as applicable. The Committee shall not approve any
such application unless it is satisfied based on the application and supporting
documentation that to grant the application is on account of a hardship for the
Participant. For purposes of this Section 8.2(a) only, hardship shall be
limited to the following situations:
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(1) heavy and immediate financial obligations incurred by the
Participant on account of sickness, accident or death of his spouse
or dependents, or on account of the Participant's sickness or
accident, which the Participant is unable to pay for from any other
source reasonably available to him;
(2) inability to purchase or finance out of any other source
reasonable available to the Participant a principal residence for
the Participant;
(3) inability to pay for or finance out of any other source
reasonably available to the Participant the cost of post-secondary
education for the Participant, his spouse or dependents;
(4) prevention of eviction from or mortgage foreclosure on
the principal residence of the Participant.
The Participant's application for withdrawal of funds due to
hardship must be accompanied or supplemented by such evidence of hardship as the
Administrator or the Committee shall reasonably request.
A withdrawal pursuant to this Section shall not operate to suspend a
Participant's contributions for any period of time or to subject the Participant
to any other penalties under this Plan.
The amount of any withdrawal under this Section shall be limited to
that amount which is required to meet the immediate financial needs created by
the hardship.
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(d) HARDSHIP WITHDRAWAL FROM SALARY REDUCTION ACCOUNT. A
Participant may request in writing, specifying the requested date of withdrawal
(which shall not be less than thirty (30) days nor more than sixty (60) days
after the date of such request) that a hardship withdrawal be made from his
Salary Reduction Account. The value of his Salary Reduction Account shall be
determined pursuant to Sections 7.4, 7.5 and 7.6 as applicable.
No hardship withdrawal under this Section 8.2(b) shall exceed the
sum of a Participant's Salary Reduction contributions made after December 31,
1988 and the amount of his Salary Reduction contributions and income allocable
thereto as of December 31, 1988.
Approval of any application for hardship withdrawal from a
Participant's Salary Reduction Account shall only be given by the Committee
where the Participant has shown that withdrawal is requested for one of the
following reasons:
i. Medical expenses of the Participant, the Participant's spouse, or
dependents, or necessary to obtain medical treatment of the
Participant, Participant's spouse or dependents,
ii. Expenses directly related to the purchase (excluding mortgage
payments) of the principal residence of the Participant,
iii. Tuition and related expenses for the next twelve month period of
post-secondary education of the Participant, the Participant's
spouse, children or dependents, (contingent upon receipt of a
favorable determination
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letter from the Internal Revenue Service, "related expenses" shall
mean books and properly documented boarding expenses connected with
post-secondary education); and
iv. Expenses necessary to prevent the eviction form, or foreclosure on
the mortgage on, the principal residence of the Participant.
In addition the Participant must further show that the amount
requested for hardship withdrawal is not in excess of the amount needed to
satisfy expenses described in (i) through (iv) above of Section 8.2(b).
Hardship withdrawals under this Section 8.2(b)(i) through (iv) may
include amounts necessary to pay any federal, state or local income taxes or
penalties reasonably anticipated to result from the distribution.
To be eligible for hardship withdrawal the Participant must have
first obtained all distributions (other than hardship withdrawals) and
nontaxable loans available to him under this Plan and any other qualified plan
maintained by the Employers and Affiliates.
A Participant who receives a hardship withdrawal under this Section
8.2(b) will be suspended from participation in the Plan and all other qualified
and non-qualified deferred compensation plans of the Employers and Affiliates
until the January or July 1st which next succeeds twelve months from the date on
which he received his hardship withdrawal.
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Salary Reduction contributions made by such Participant in the
taxable year following the year of hardship distribution will be limited to the
annual dollar limitation under Section 402(g) of the Code in effect for that
year, as denoted in Section 4.1(c), minus the Participant's Salary Reduction
Contributions for the taxable year in which he received his hardship withdrawal.
SECTION 8.3. WITHDRAWAL FROM SALARY REDUCTION ACCOUNT.
Withdrawals from the Salary Reduction Account are also permitted under the
following circumstances and such withdrawals will not subject the Participants
to any penalty under the Plan.
(a) DISABILITY WITHDRAWAL. A Participant may make a cash
withdrawal from his Salary Reduction Account at any time if the withdrawal is an
account of a disability. The Committee shall not approve any such application
for disability withdrawal unless it is satisfied that the Participant is
disabled. For the purposes of this subsection, a Participant shall be
considered disabled if (i) he is disabled within the meaning of the Company's
Long-Term Disability Plan, or (ii) he is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or to be of long-continued
and indefinite duration, or (iii) he is disabled within the meaning of uniform,
nondiscriminatory rules which the Committee may adopt. The Committee may
require that the Participant submit whatever evidence it deems necessary to
establish whether the Participant is disabled. The value of the Participant's
account
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as of the requested withdrawal date shall be determined pursuant to Sections
7.4, 7.5 or 7.6 as applicable.
(b) Withdrawals from the Salary Reduction Account will also be
permitted for a Participant who has attained the age of 59-1/2 years upon
application made by him to the Administrator.
SECTION 8.4. DISTRIBUTION UPON ELECTION TO DISCONTINUE
CONTRIBUTIONS FOR AN INDEFINITE PERIOD. As of any given date, an Active
Participant may elect to discontinue his contributions for an indefinite period
by giving written notice specifying the requested date of discontinuance to the
Administrator in the form prescribed by the Administrator at least 30 days prior
to such date. Upon such a discontinuance by a Participant, the Administrator
shall upon request of the Participant, direct the Trustee to distribute to the
Participant an amount equal to the aggregate value as of such date of all
Accounts except the Salary Reduction Account.
Notwithstanding the preceding paragraph to the contrary,
contributions may not be withdrawn from the Employer Account prior to the
expiration of twenty-four months from the date of contribution to the Employer
Account or unless the Participant making the withdrawal request has been a
Participant in the Plan for a minimum of sixty months. For purposes of this
Section 8.4 participation in a Prior Plan is deemed to be participation in this
Plan.
The value of the Participant's Accounts (excluding the Salary
Reduction Account) shall be determined pursuant to Section 7.4 or Section 7.5,
whichever is applicable. A
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Participant who elects to discontinue his contributions pursuant to this Section
shall be ineligible to again elect to make contributions to the Plan until the
earlier of the January 1 or July 1 which succeeds by at least twelve months the
date of the election to discontinue contributions.
Section 8.5. (a) LOANS. Upon application of an Active or
Inactive Participant or Beneficiary, the Committee shall direct the Trustee to
make a cash loan to a Participant. The terms of a loan shall be determined at
the sole discretion of the Committee subject to the following conditions:
(1) The term of a loan shall not exceed five years except
that where the Participant has designated that the purpose of the
loan is to purchase a principal residence for the Participant, the
term of the loan shall not exceed ten years.
(2) A general purpose loan may not be used to purchase
securities.
(3) A loan shall bear interest at the prevailing rate in the
surrounding community for loans of similar risk, date of maturity,
and date of grant, determined from time to time by the Committee.
(4) The amount of a loan shall not exceed the lesser of 50%
of the value of the Participant's or Beneficiary's accounts or
$50,000, and the loan shall be secured by the Participant's or
Beneficiary's Plan Account value. The Committee may require the
posting of other or additional security at any time during the
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term of the loan. The amount of a loan secured by a Plan Account
shall be equal to a maximum of the lesser of 50% of the Plan Account
or $50,000, minus the highest outstanding loan balance within the
past year.
(a) For purposes of the above paragraph the value of the
Participant's or Beneficiary's Plan Account shall be
determined as at the Valuation Date which next succeeds the
date on which the request for the loan is received.
(5) A loan shall be evidenced by a promissory note.
(6) Payments of principal and interest shall be made by
approximately equal payments on a basis that would permit the loan
to be fully amortized over its term. Prepayments of principal and
interest of the full remaining balance of the loan only, may be made
without penalty. Loan payments by active Employees shall be made by
monthly payroll deductions except for prepayments or where otherwise
permitted by the Committee, but in no event may loan payments be
made on less than a quarterly basis. Loan payments by inactive
Employees, former Employees or Beneficiaries shall be made monthly
to the Plan Administrator or his designee on the date and in the
manner prescribed by him.
(7) Loans shall be granted on a reasonably equivalent basis
and highly compensated employees,
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officers, or shareholders of an Employer shall not be granted
preferential loan terms.
(8) If an active employee defaults in the making of any
payments on a loan when due and such default continues for 60 days
thereafter, or in the event of such active employee's bankruptcy,
impending bankruptcy, insolvency or impending insolvency, the loan
shall be deemed to be in default, and the entire unpaid balance with
accrued interest shall become due and payable. If a former employee
or Beneficiary defaults in the making of any payment on a loan when
due and such default continues for 30 days thereafter, or in the
event of the borrower's bankruptcy, impending bankruptcy, insolvency
or impending insolvency, the loan shall be deemed to be in default
and the entire unpaid balance with accrued interest shall become due
and payable. The Committee or its designee may pursue collection of
the debt by any means generally available to a creditor where a
promissory note is in default, or, if the entire amount due is not
paid within 60 days following the default or in the case of a former
employee or Beneficiary, within 30 days following the default, the
Committee or its designee may execute upon the collateral and apply
the proceeds from the sale or disposition of such collateral in
satisfaction of the unpaid principal and accrued interest to the
extent the Participants interest in the Plan (or portion thereof)
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is then distributable. The Participant or Beneficiary shall remain
personally liable for any remaining deficiency. If necessary to
satisfy the entire outstanding obligation, the Employer may apply
the Participant's interest in a series of actions as amounts
credited to his Account become distributable.
(9) Appropriate disclosure shall be made pursuant to the
Truth in Lending Act to the extent applicable.
(10) Amounts of principal and interest received on a loan
shall be credited to the Participant's or Beneficiary's Plan Account
and the loan shall be considered an asset of the Plan Account.
(11) The Committee shall, from time to time, establish the
terms and conditions on which loans will be made, including the
frequency, interest rate, maturity dates, loan application fees, if
any, and the selection and order of sub-accounts used in making such
loans. In making its determination with respect to eligibility for
loans and interest rates thereon, the Committee shall adopt uniform
and non-discriminatory rules and its determination shall be final
and binding.
(12) Notwithstanding any other provision of this Section 8.5
to the contrary, loans may be granted only to Participants and
Beneficiaries who are "parties in interest" as defined under Section
3(14) of ERISA. Determination of who is a party in interest shall
be
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made by the Plan Administrator with the advice of counsel.
SECTION 8.6. DISTRIBUTION UPON TERMINATION OF EMPLOYMENT.
Except as provided in Section 8.10, whenever a Participant terminates his
employment with his Employer or its Affiliate then the Administrator shall
instruct the Trustee to distribute to such Participant, or, in a proper case, to
his Beneficiary, an amount equal to the value of the Participant's Plan Accounts
determined as of the Valuation Date which occurs closest to the date of
termination.
SECTION 8.7. TIME AND MANNER OF DISTRIBUTIONS.
(a) Any distribution to which a Participant becomes entitled by
reason of a withdrawal under Section 8.1, 8.2, 8.3 or 8.4 or distribution under
Section 8.6 or which is to be made to an alternative payee pursuant to the
provisions of Article 13, shall be paid by the Trustee in a lump sum at the
instruction of the Administrator within 60 days following the close of the
calendar month in which the withdrawal request or request for receipt is
received.
(b) If full distribution of the amount to which a Distributee
becomes entitled cannot be made within 60 days following the date of termination
or request for receipt, if applicable, pursuant to Section 8.6 because the
Participant cannot be located, the undistributed balance of such amount shall,
as of the first Valuation Date after the close of such 60-day period, be
deposited in a savings account or accounts with such bank as the Committee may
from time to time select for this
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purpose. The Committee shall establish in the name of the Distributee an
account under the Plan (hereinafter referred to as an "interest account") to
which shall be credited any amount so deposited and any interest paid from time
to time on such savings account or accounts. All distributions made to any
Distributee shall be changed to the Distributee's interest account.
SECTION 8.8. DESIGNATION OF BENEFICIARY.
(a) The Beneficiary of a Participant who is married shall be his
spouse. Should a Participant who is married desire to elect a Beneficiary other
than his spouse, he may do so only in the form prescribed by the Administrator,
which shall require the written consent of such spouse to the Participant's
election of another Beneficiary. To be effective, such written consent must be
notarized or witnessed by the Administrator or his designee.
(b) If a Participant is not married or if the Participant proves to
the satisfaction of the Administrator that his spouse cannot be located, then
the Participant shall have the right to designate any Beneficiary or
Beneficiaries.
(c) The Beneficiary of a Participant shall receive any distribution
upon the death of the Participant or, in accordance with Section 8.7, in the
case of a Participant who dies subsequent to termination of his employment but
prior to distribution of the entire amount to which he is entitled under the
Plan, to receive any undistributed balance to which such Participant would have
been entitled subject to the provisions of Section 8.10, if applicable.
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A Participant described in Paragraph (b) of this Section 8.8 may
from time to time, without the consent of the non-spouse Beneficiary, change or
cancel any such designation. A Participant who has obtained spousal consent in
accordance with Paragraph (a) of this Section 8.8 may change or cancel a
subsequent Beneficiary designation to a person other than his spouse only upon
obtaining spousal consent, in accordance with Paragraph (a) of this Section, to
the new Beneficiary designation. Such designation and each change therein shall
be made in the form prescribed by the Administrator and shall be filed with the
Administrator or his designee.
If no Beneficiary has been named by a deceased unmarried Participant
or the spouse of a deceased Participant cannot be located or the designated
Beneficiary or spouse, as applicable, has predeceased the Participant or the
designated Beneficiary or spouse has died prior to complete disbursement of the
Participant's account balance, the balance of the deceased Participant's
accounts shall be distributed by the Trustee at the direction of the
Administrator, where applicable, (a) to the surviving spouse of such deceased
Participant, if any, or (b) if there shall be no surviving spouse, the surviving
children of such deceased Participant, if any, in equal shares, or (c) if there
shall be no surviving spouse or children, to the executors or administrators of
the estate of such deceased Participant, or (d) if no executor or administrator
shall have been appointed for the estate of such deceased Participant within six
months from the date of the Participant's death, to the person or persons who
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would be entitled under the intestate succession laws of the state of the
Participant's domicile to receive the Participant's personal estate.
Nothing in this Section 8.8 shall contravene any applicable
provision (directing payment to an alternate payee) of a qualified domestic
relations order determined to be such by the Administrator or the Committee in
accordance with the procedures set forth in Article 13.
SECTION 8.9. DISTRIBUTION TO MINOR AND DISABLED DISTRIBUTEES.
Any distribution under this Article which is payable to a Distributee who is a
minor or to a Distributee who, in the opinion of the Committee, is unable to
manage his affairs by reason of illness or mental incompetency may be made to or
for the benefit of any such Distributee in such of the following ways as the
Committee may direct: (a) directly to any such minor Distributee if, in the
opinion of the Committee, he is able to manage his affairs, (b) to the legal
representative of any such Distributee, (c) to a custodian under a Uniform Gifts
to Minors Act for any such minor Distributee, or (d) to some near relative of
such Distributee to be used for the latter's benefit. Neither the Committee nor
the Trustee shall be required to see to the application by any third party of
any distribution made to or for the benefit of a distribution pursuant to this
Section.
SECTION 8.10. DISTRIBUTIONS.
(a) Notwithstanding anything in this Article or the Plan to the
contrary, a Participant who is terminating his employment and is eligible for
early or normal retirement under
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any pension plan of the Company will be permitted to elect, at any time prior to
his termination, to defer either
1) receipt of distribution of his entire Plan Account, or
2) receipt of or distribution of his Plan Account exclusive of the
entire amount of his Employee Contributions as defined in Section
4.1(a) of the Plan which were contributed prior to January 1, 1987
until no later than his 70th birthday.
A Participant electing deferral of his distribution under this
Section 8.10, shall receive his distribution by notifying the Administrator or
his designee at least sixty days prior to the date he wishes to receive it. His
Plan Account shall then be valued according to the terms of Section 7.4 or
Section 7.5 whichever is applicable. If a Participant has not notified the
Administrator by sixty days prior to his 70th birthday, his Plan Account shall
automatically be distributed to him on that birthday.
A Participant making a deferral election under this Section 8.10(a)
must also irrevocably elect to invest his Plan Account in either the Fixed
Income Fund or the Money Market Fund or 50% in either of those two funds and 50%
in the other. His Plan Account shall remain so invested until totally
distributed.
(b) A Participant who has not attained age 70-1/2 and whose Plan
Account is valued in excess of $3500 as of the Valuation Date occurring closest
to his termination of employment must consent to any distribution that is made
and is entitled to defer distribution of his entire Plan Account until his 70th
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birthday. Such a Participant may elect to receive the value of his entire Plan
Account in a lump sum at any time prior to his 70th birthday upon sixty days
written notice to the Plan Administrator or his designee. Any Participant who
has not notified the Plan Administrator within sixty days of his 70th birthday
shall automatically receive his distribution on that birthday. Such a
Participant's Plan Account will be invested in the Fixed Income Fund from the
Valuation Date closest to his termination of employment until he elects to
receive his distribution.
A Participant who makes an election to defer distribution pursuant
to this paragraph shall be considered an inactive Participant for all purposes
of the Plan including Article 5 for the period of time from termination of
employment until distribution on the applicable date of receipt.
(c) No more than ninety (90) days prior to receipt of his
distribution pursuant to this Section, a Participant must elect to receive his
distribution in: (1) a lump sum on the date of distribution, or (2) in equal
annual installments not to exceed ten which installments shall commence on the
date requested for distribution.
(d) No more than ninety (90) days prior to receipt of his
distribution pursuant to this Section, he must also make an election for the
method of distribution in the event of his death prior to total distribution.
The Participant shall elect that his Beneficiary, designated pursuant to Section
8.7, shall receive his Plan Account Distribution (a) in a lump sum within
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sixty (60) days following the date of his death, or (b) in equal annual
installments not to exceed five installments commencing on the date of his
death.
(e) Notwithstanding the foregoing provisions of this Article 8,
distribution of the Participant's Plan Account shall begin not later than the
sixtieth day after the latest of the close of the Plan Year in which --
(1) his termination of employment occurs,
(2) the tenth anniversary of the commencement of his
participation in the Plan, or
(3) the date on which the Participant attains age 65.
except to the extent that the Participant has elected to defer the distribution
pursuant to this section 8.10.
(f) Notwithstanding subsection (e) and except as provided otherwise
in this subsection (f), distribution of a Participant's Plan Account shall begin
no later than April 1 of the calendar year following the calendar year in which
the Participant attains age 70-1/2 regardless of whether he terminates
employment, unless the Participant attained age 70-1/2 prior to January 1, 1988
(during which he was not a five (5) percent or more owner, as described in
Section 416 of the Code), in which case the commencement of his distribution
will be delayed until his employment with the Employers and Affiliates
terminates.
(g) If the amount of a distribution required to commence on the
date determined under this subsection cannot be
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ascertained by the Committee, or if it is not possible to make such payment on
such date because the Committee has been unable to locate the Participant after
making reasonable efforts to do so, a payment retroactive to such date may be
made no later than sixty days after the earliest date on which the amount of
such payment can be ascertained and the Participant can be located.
SECTION 8.11. CONDITIONS FOR DISTRIBUTIONS TO BENEFICIARY, UPON
DEATH OF A PARTICIPANT.
(a) Notwithstanding any other section of the Plan, if a Participant
dies after distribution of his Account has begun, the remainder of his Plan
Account, if any, shall be distributed to his Beneficiary as rapidly as the
method of distribution to the Participant prior to the Participant's death.
(b) Notwithstanding any other section of the Plan, if the
Participant dies before distribution of his Account has begun, his Plan Account
shall be distributed in a lump sum or by the method selected by the Participant
provided that distribution shall begin not later than December 31 of the
calendar year (i) following the calendar year of the Participant's death, or
(ii) if the Beneficiary is the Participant's surviving spouse, in which the
Participant would have attained age 70-1/2; provided, however, that in no event
shall a Participant's Account be distributed over a period extending beyond the
life of such Beneficiary (or over a period extending beyond the life expectancy
of the Beneficiary).
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(c) The Participant's Beneficiary shall receive the value of the
Participant's Plan Account as of the Valuation Date immediately succeeding the
date of the Participant's death.
SECTION 8.12. DIRECT ROLLOVERS. Notwithstanding any provision
of the Plan to the contrary that would otherwise limit a Distributee's election
under this Article, a Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an Eligible
Rollover Distribution paid directly to an Eligible Retirement Plan specified by
the Distributee in a Direct Rollover.
ARTICLE 9
SPECIAL RULES RELATING TO REEMPLOYMENT
OF TERMINATED EMPLOYEES AND EMPLOYMENT
BY RELATED ENTITIES
SECTION 9.1. REEMPLOYMENT OF A TERMINATED PARTICIPANT. If a
terminated Participant who is entitled to receive payments pursuant to Sections
8.6 or 8.10 is reemployed prior to receipt of his deferred distribution pursuant
to Section 8.10 or is reemployed prior to total distribution, such payments
shall remain deferred or be suspended, as applicable, until such Participant's
subsequent termination of employment or his attainment of age 70, whichever
first occurs.
ARTICLE 10
ADMINISTRATION
SECTION 10.1. THE COMMITTEE. (a) The Board of Directors of
the Company shall appoint a Committee consisting of certain members responsible
(except for duties specifically
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vested in the Trustee and the Investment Manager) for the administration of the
provisions of the Plan. The Company and the Committee shall be "named
fiduciaries" within the meaning of such term as used in ERISA. The Board of
Directors of the Company shall have the right at any time, with or without
cause, to remove any member of the Committee. A member of the Committee may
resign and his resignation shall be effective upon delivery of his written
resignation to the Company. Upon the resignation, removal or failure or
inability for any reason of any member of the Committee to act hereunder, the
Board of Directors of the Company may appoint a successor member. All successor
members of the Committee shall have all the rights, privileges and duties of
their predecessors, but shall not be held accountable for the acts of their
predecessors.
(b) Any member of the Committee may, but need not, be an employee
or director, officer or shareholder of any of the Employers, and such status
shall not disqualify him from taking any action hereunder or render him
accountable for any distribution or other material advantage received by him
under the Plan, provided that no member of the Committee who is a Participant
shall take part in any action of the Committee or any matter involving solely
his rights under the Plan.
(c) The Committee shall have the duty and authority to interpret
and construe the Plan in regard to all questions of eligibility and the status
and rights of Participants, Distributees and other persons under the Plan. Each
Employer shall, from time to time, upon request of the Committee, furnish
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to the Committee such data and information as the Committee shall require in the
performance of its duties.
(d) The Committee shall supervise the collection of Participants'
contributions and the delivery of such contributions, Employer Contributions and
Salary Reduction Contributions to the Trustee from time to time.
Notwithstanding any other provision of the Plan to the contrary the Committee
has the right to lower the Salary Reduction or Employee Contributions (on a
prospective basis) of any Participant who is a Highly Compensated Employee at
any time during the Plan Year where the Committee deems such action to be
necessary to insure that the Plan complies with the rules set forth in Sections
4.6(a) and 4.10(b)(i) and (ii).
(e) The members of the Committee may allocate their
responsibilities among themselves and may designate any person, partnership or
corporation to carry out any of their responsibilities. Any such allocation or
designation should be reduced to writing and such writing shall be kept with the
records of the meetings of the Committee.
(f) The Committee may act at a meeting, or by writing without a
meeting, by the vote or written assent of a majority of its members. The
Committee may select a chairman and shall keep the Trustee advised of the
identity of the member holding such office. The Committee shall appoint one of
its members to act as the Plan's agent for service of legal process. The
Committee shall select a secretary, who need not be a member of the Committee,
and shall keep the Trustee advised of the identity of
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the person holding such office. The secretary shall keep records of all
meetings of the Committee and forward all necessary communications to the
Trustee. The Committee may adopt such rules and procedures as it deems
desirable for the conduct of its affairs and the administration of the Plan,
provided that any such rules and procedures shall be consistent with the
provisions of the Plan and ERISA.
(g) The members of the Committee, and each of them, shall discharge
their duties with respect to the Plan (i) solely in the interest of the
Participants and Beneficiaries, (ii) for the exclusive purpose of providing
benefits to Employees participating in the Plan and their Beneficiaries and of
defraying reasonable expenses of administering the Plan, and (iii) 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. The Company shall indemnify the members of the Committee, and each of
them, from the effects and consequences of their acts, omissions and conduct in
their official capacity as members of the Committee. Such indemnification shall
extent to any action, suit or proceeding to which the members shall be made or
threatened to be made a party, whether civil, criminal, administrative or
investigative, and whether or not terminated by judgment, settlement, conviction
or upon a plea of NOLO CONTENDERE or its equivalent; PROVIDED, HOWEVER,
such indemnification shall not extend to any action, suit, or proceeding in
which it shall be
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finally adjudicated that (1) a member did not act in good faith, and (2) with
respect to any criminal action or proceeding, the member did not have reasonable
cause to believe his conduct was lawful.
(h) No member of the Committee shall receive any compensation or
fee for his services, unless otherwise agreed between such member of the
Committee and the Employers, but the Employers shall reimburse the Committee
members for any necessary expenditures incurred in the discharge of their duties
as Committee members.
(i) The Committee may employ such counsel (who may be of counsel
for any Employer) and agents and may arrange for such clerical and other
services as it may require in carrying out the provisions of the Plan.
SECTION 10.2. PLAN ADMINISTRATOR.
(a) The Company shall appoint a Plan Administrator (as such term is
used in ERISA) who may but need not be a Participant or shareholder of the
Company and such status shall not disqualify him from taking any action
hereunder or render him accountable for any distribution or other material
advantage received by him under the Plan, provided that he shall not take part
in any matter involving solely his rights under the Plan.
(b) The Plan Administrator shall be responsible for the operation
of the Plan within the policies, interpretations, rules and procedures of the
Committee. The Plan Administrator shall also perform such ministerial functions
with respect to the Plan as the Committee shall from time to time designate.
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SECTION 10.3. CLAIMS PROCEDURE. If any Participant or
Distributee believes he is entitled to benefits in any amount greater than those
which he is receiving or has received, he may file a claim with the
Administrator. Such a claim shall be in writing and state the nature of the
claim, the facts supporting the claim, the amount claimed, and the address of
the claimant. The Plan Administrator shall review the claim and, within 90 days
after receipt of the claim, give written notice by registered or certified mail
to the claimant of his decision with respect to the claim. If special
circumstances require an extension of time, the claimant shall be so advised in
writing within the initial 90-day period and in no event shall such an extension
exceed 90 days. Such notice shall be written in a manner calculated to be
understood by the claimant and, if the claim is wholly or partially denied, set
forth the specific reasons for the denial, specific references to the pertinent
Plan provisions on which the denial is based, a description of any additional
material or information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary, and an explanation
of the claim review procedure under the Plan. The Plan Administrator shall also
advise the claimant that he or his duly authorized representative may request a
review by the Committee of the denial by filing with the Plan Administrator,
within 65 days after notice of the denial has been received by the claimant, a
written request for such review. The claimant shall be informed that he may
have reasonable access to pertinent documents and submit comments in writing to
the
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Committee within the same 65-day period. If a request is so filed, review of
the denial shall be made by the Committee within 60 days after receipt of such
request, and the claimant shall be given written notice of the resulting final
decision. Such notice shall include specific reasons for the decision and
specific references to the pertinent Plan provisions on which the decision is
based and shall be written in a manner calculated to be understood by the
claimant.
SECTION 10.4. NOTICES TO PARTICIPANTS AND DISTRIBUTEES. All
notices, reports and statements given, made, delivered or transmitted to a
Participant or Distributee shall be deemed to have been duly given, made,
delivered or transmitted when mailed by first class mail with postage prepaid
and addressed to such person at the address last appearing on the records of the
Committee. A Participant or Distributee may record any change of his address
from time to time by written notice filed with the Committee.
SECTION 10.5. NOTICE TO COMMITTEE OR EMPLOYERS. Written
authorizations, directions, notices and other communications to the Employers or
the Committee shall be deemed to have been duly given, made or transmitted
either when delivered to such location as shall be specified upon the forms
prescribed by the Committee for the giving of such authorizations, directions,
notices and other communications, or when mailed by first class mail with
postage prepaid and addressed to the addressees at the address specified upon
such forms.
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SECTION 10.6. RECORDS. The Committee shall keep a record of
all of its proceedings and shall keep or cause to be kept all books of account,
records and other data as may be necessary or advisable in its judgment for the
administration of the Plan.
SECTION 10.7. REPORTS OF TRUST FUND. The Committee shall keep
on file, in such form as it shall deem convenient and proper, all reports
concerning the Trust Fund received by it from the Trustee.
ARTICLE 11
PARTICIPATION BY OTHER EMPLOYERS
SECTION 11.1. ADOPTION OF PLAN. With the consent of the
Company, any corporation may become a participating Employer under the Plan by
(a) taking such action as shall be necessary to adopt the Plan, (b) filing with
the Committee a duly certified copy of the Plan as adopted by such corporation,
(c) becoming a party to the Trust agreement establishing the Trust Fund, and (d)
executing and delivering such instruments and taking such other action as may be
necessary or desirable to put the Plan into effect with respect to such
corporation.
SECTION 11.2. WITHDRAWAL FROM PLAN. Any Employer may withdraw
from participation in the Plan at any time by filing with the Committee a duly
certified copy of the resolution of its board of directors to that effect and
giving notice of its intended withdrawal to the Committee, the other Employers
and the Trustee prior to the effective date of withdrawal.
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SECTION 11.3. COMPANY AS AGENT FOR EMPLOYERS. Each corporation
which shall become a participating Employer pursuant to Section 11.1 or Article
12 by so doing shall be deemed to have appointed the Company its agent to
exercise on its behalf all of the powers and authorities hereby conferred upon
the Company by the terms of the Plan, including, but not by way of limitation,
the power to amend and terminate the Plan. The authority of the Company to act
as such agent shall continue unless and until the portion of the Trust Fund held
for the benefit of Employees of the particular Employer and their Beneficiaries
is set aside in a separate trust as provided in Section 14.2.
ARTICLE 12
CONTINUANCE BY A SUCCESSOR
In the event that any Employer shall be reorganized by way of
merger, consolidation, transfer of assets or otherwise, so that another
corporation other than an Employer shall succeed to all or substantially all of
such Employer's business, such successor corporation may be substituted for such
Employer under the Plan by adopting the Plan and becoming a party to the Trust
agreement. Contributions by such Employer and by its employees shall be
automatically suspended from the effective date of any such reorganization until
the date upon which the substitution of such successor corporation for the
Employer under the Plan becomes effective. If, within 90 days from the
effective date of any such reorganization, such successor corporation shall not
have elected to become a party to the Plan, or if the Employer
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shall adopt a plan of complete liquidation other than in connection with a
reorganization, the Plan shall be automatically terminated with respect to
employees of such employer as of the close of business on the 90th day following
the effective date of such reorganization or as of the close of business on the
date of adoption of such plan of complete liquidation, as the case may be, and
the Committee shall direct the Trustee to distribute the portion of the Trust
applicable to such Employer in the manner provided in Section 14.3.
ARTICLE 13
DOMESTIC RELATIONS ORDERS AND LOANS
SECTION 13.1. "ODRO". The restrictions imposed by Section 14.2
shall not apply to a "qualified domestic relations order" defined in Code
Section 414(p), and those other domestic relations orders permitted to be so
treated by the Administrator under the provisions of the Retirement Equity Act
of 1984. The Administrator shall establish a written procedure to determine the
qualified status of domestic relations orders and to administer distributions
under such qualified orders. Further, to the extent provided under a "qualified
domestic relations order", a former spouse of a Participant shall be treated as
the spouse or surviving spouse for all purposes under the Plan.
Notwithstanding anything else in the Plan to the contrary,
distribution from a Participant's Account may be made to an Alternate Payee (as
defined in Code Section 14(p)), pursuant to a "qualified domestic relations
order" prior to
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attainment of age 50 or separation from service by the Participant if the
"qualified domestic relations order" provides that the Plan and the Alternate
Payee may agree in writing to an earlier distribution and distribution is made
pursuant to such written agreement.
SECTION 13.2. INDEBTEDNESS. The restrictions imposed by
Section 14.2 shall not apply to the extent a Participant is indebted to the
Plan, for any reason, under the terms of the Plan. At the time a distribution
is to be made to a Participant or Beneficiary, such proportion of the amount
distributed as shall equal such indebtedness shall be paid by the Trustee to the
Administrator, at the direction of the Administrator or the Committee, to apply
against or discharge such indebtedness. Prior to making a payment, however, the
Participant or Beneficiary must be given written notice by the Administrator
that such indebtedness is to be paid in while or part from the Participant's
Plan Account. If the Participant or the Beneficiary does not agree that the
indebtedness is a valid claim against his Plan Account, he shall be entitled to
a review of the validity of the claim in accordance with Section 10.3.
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ARTICLE 14
MISCELLANEOUS
SECTION 14.1. EXPENSES. Except as otherwise provided in
Section 6.4 and elsewhere in the Plan, all costs and expenses incurred in
administering the Plan and the Trust Fund, including the fees of counsel and any
agents for the Committee, the expenses of the Committee, the fees, charges and
costs of, and incurred by, the Investment Manager, the fees and expenses of the
Trustee, the fees of counsel for the Trustee and other administrative expenses,
shall be borne by the several Employers in such proportions as the Committee
shall determine to be equitable and proper.
SECTION 14.2. NON-ASSIGNABILITY. It is a condition of the
Plan, and all rights of each Participant and Distributee shall be subject
thereto, that no right or interest of any Participant or Distributee in the Plan
shall be assignable or transferable in whole or in part, either directly or by
operation of law or otherwise, including, but not by way of limitation,
execution, levy, garnishment, attachment, pledge or bankruptcy, but excluding
devolution by death or mental incompetency, and no right or interest of any
Participant or Distributee in the Plan shall be liable for, or subject to, any
obligation or liability of such Participant or Distributee, including claims for
alimony or the support of any spouse, except as provided in Section 13.1.
SECTION 14.3. EMPLOYMENT NON-CONTRACTUAL. The Plan confers no
right upon any Employee to continue in employment.
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SECTION 14.4. LIMITATION OF RIGHTS. A Participant or
Distributee shall have no right, title or claim in or to any specific asset of
the Trust, but shall have the right only to distributions from the Trust Fund on
the terms and conditions herein provided.
SECTION 14.5. MERGER OR CONSOLIDATION WITH ANOTHER PLAN. A
merger or consolidation with, or transfer of assets or liabilities to, any other
plan shall not be affected unless the terms of such merger, consolidation or
transfer are such that each Participant, Distributee, Beneficiary or other
person entitled to receive benefits from the Plan would, if the Plan were to
terminate immediately after the merger, consolidation or transfer, receive a
benefit equal to or greater than the benefit such person would be entitled to
receive if the Plan were to terminate immediately before the merger,
consolidation, or transfer.
SECTION 14.6. REVERSION OF EMPLOYER CONTRIBUTIONS. No part of
the Trust Fund shall revert or be repaid to an Employer either directly or
indirectly or shall be used for or diverted to any purpose nor for the exclusive
benefit of Participants and their Beneficiaries. However, any portion of a
contribution made by an Employer by reason of a good faith mistake of fact, or
the portion of any contribution made by an Employer which exceeds the maximum
amount for which a deduction is allowable to the Employer for federal income tax
purposes, shall upon the request of the Employer be returned by the Trustee to
the Employer. The Employer's request and the return of any such contribution
must
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be made within one year after such contribution was mistakenly made or after the
deduction of such excess portion of such contribution was disallowed, as the
case may be. The amount to be returned to the Employer pursuant to this
paragraph shall be the excess of (i) the amount contributed over (ii) the amount
that would have been contributed had there not been a mistake of fact or a
mistake in determining the maximum allowable deduction. Earnings attributable
to the amount contributed by mistake shall not be returned to the Employer, but
losses attributable thereto shall reduce the amount so returned. If return to
the Employer of the amount contributed by mistake would cause the balance of any
Participant's account as of the date such amount is to be returned to be reduced
to less than what would have been the balance of such account as of such date
had such amount not been contributed, the amount to be returned to the Employer
shall be limited so as to avoid such reduction. Employer contributions
(including Salary Reduction Contributions) under the Plan are conditioned on the
initial qualification of the Plan under Section 401(a) of the Code and, if the
Plan receives an adverse determination with respect to its initial
qualification, then the Trustee shall, upon written request of an Employer,
return to that Employer the value of the Plan assets attributable to
contributions made by that Employer under the Plan, within one year after the
date that qualification of the Plan is denied. The preceding sentence shall
apply only if the application for determination is made by the time prescribed
by law for filing the Employer's return for the taxable year in which the Plan
is
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adopted, or such later date as may be prescribed by the Secretary of the
Treasury.
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ARTICLE 15
AMENDMENT, WITHDRAWAL AND TERMINATION
SECTION 15.1. AMENDMENT. The Company may at any time and from
time to time amend or modify the Plan by written instrument duly adopted by the
Board of Directors of the Company. Any such amendment or modification shall
become effective on such date as the Company shall determine and may apply to
Participants in the Plan at the time thereof as well as to future Participants.
SECTION 15.2. WITHDRAWAL. If an Employer shall withdraw from
the loan under Section 11.2, the Committee shall determine the portion of the
Trust Fund held by the Trustee which is applicable to the Participants and
former Participants of such Employer, and shall direct the Trustee to segregate
such portion in a separate trust. Such separate trust shall thereafter be held
and administered as a part of the separate plan of such Employer.
The portion of the Trust Fund applicable to the Participants and
former Participants of a particular Employer shall be the sum of:
(a) the total amount credited to all interest and special accounts
which are applicable to the Participants and former Participants of such
Employer; and
(b) an amount which bears the same ratio to the excess, if any, of
(i) the total value of the Trust Fund over
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(ii) the total amount credited to all interest and special accounts
as the total amount credited to the accounts (other than interest and special
accounts) which are applicable to the Participants and former Participants of
such Employer bears to the total amount credited to such accounts of all
Participants and former Participants.
SECTION 15.3. TERMINATION. Any Employer may at any time
terminate its participation in the Plan by resolution of its board of directors
to that effect. In the event of any such termination, the Committee shall
determine the portion of the Trust Fund held by the Trustee which is applicable
to the Participants and former Participants of such Employer and direct the
Trustee to distribute such portion as follows:
(a) The balance in any savings account shall be distributed to the
Distributee entitled to receive such account.
(b) The remaining assets of such portion of the Trust Fund shall be
distributed to Participants ratably in proportion to the balances of their
respective Accounts.
A complete discontinuance of contributions by an Employer shall be
deemed a termination of such Employer's participation in the Plan for purposes
of this Section.
SECTION 15.4. DISTRIBUTION UPON SALE OF ASSETS. All
contributions and income attributable thereto under the Plan shall be
distributed to Participants, as soon as administratively feasible after the
sale, to an entity that is not an Affiliate,
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of substantially all of the assets used by the Employer in the trade or business
in which the Participant is employed.
SECTION 15.5. DISTRIBUTIONS UPON SALE OF SUBSIDIARY. All
contributions and income attributable thereto under the Plan, shall be
distributed, as soon as administratively feasible after the sale, to an entity
that is not an Affiliate, of an incorporated Affiliated Employer's interest in a
subsidiary to Participants employed by such subsidiary.
ARTICLE 16
TOP-HEAVY PLAN YEARS
SECTION 16.1. DEFINITIONS. For purposes of this Article 16:
(a)(1) "Key Employee" means Employee who, at any time during the plan year
which includes the Determination Date or any of the four (4) preceding plan
years, is or was:
(i) one of the ten (10 Employees owning the largest
interests in all Employer and Affiliates considered as a unit,
excluding any ownership interest which is less than 1/2 of one
percent;
(ii) an owner of more than five percent (5%) of the
outstanding stock, or of stock possessing more than five
percent (5%) of the total combined voting power, of any
Employer or Affiliate;
(iii) an owner of more than one percent (1%) of the
outstanding stock or of stock possessing more than one percent
(1%) of the total combined voting power of any Employer or
Affiliate, whose
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Section 415 Compensation from all Employers and Affiliates
combined exceeds $150,000; or
(iv) an officer of an Employer or Affiliate, as
determined under the applicable provisions of Paragraphs (2)
through (4) of this Subsection (a).
(2) No Employee shall be considered a Key Employee pursuant to
Subparagraph (1)i) if such Employee's Compensation is less than the amount
determined under Section 415(c)(1)(A) of the Code (as adjusted pursuant to
Section 415(d)(1)(B) of the Code) for the calendar year in which falls the
Determination Date.
(3) For purposes of Subparagraphs (1)(i)-(iii), an Employee shall
be considered as owning all interests in an Employer which he owns directly or
would be considered as owning under the rules contained in Section 318 of the
Code, except that Subparagraph (C) of Section 318(a)(2) shall be applied by
substituting "5%" for "50%".
(4) No more than the greater of three (3) Employees or ten percent
(10%) of all Employees (up to a maximum of 50) of all Employers and Affiliates
considered as a unit shall be considered officers for purposes of Subparagraph
(1)(iv). Where the actual number of such officers exceeds the limits imposed by
the preceding sentence, those considered officers for purposes of Subparagraph
(1)(iv) shall be the officers having the highest annual Compensation during the
five-year period consisting of the Plan Year and the four (4) preceding Plan
Years.
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(b) "Determination Date" means with respect to any plan, the last
day of the immediately preceding Plan Year or, in the case of the first plan
year of that plan, the last day of that year.
(c) "Aggregation Group" means
(1) each other retirement plan an Employer or Affiliate,
each of which -
(i) is qualified under Section 401(a) of the Code, and
during the plan year which includes the applicable
Determination Date or during any of the four preceding plan
years, has one or more Participants who are Key Employees,
and/or enables the Plan or any plan in which a Key Employer
participates to meet the requirements of Section 401(a)(4) or
Section 410 of the Code, plus, at the Company's election,
(2) any other plan or plans which, when considered together
with the plan or plans described in Paragraph (1) would satisfy the
requirements of Section 401(a)(4) and/or Section 410 of the Code.
(d) "Employee" and "Key Employee" include deceased employees or
their beneficiaries.
(e) "Top-Heavy Plan Year" means any Plan Year for which the Plan
is a Top-Heavy Plan described in Section 16.3, such Section 16.3 to be read as
incorporating the definitions supplied by Section 416 of the Code and the
regulations
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promulgated thereunder, and those of any successor statute thereto.
(f) "Section 415 Compensation" means, for any period, an
individual's current Compensation from an Employer or an Affiliate for such
period, including those items listed in Paragraph (1) of Treas. Reg. Section
1.415-2(d), but excluding those items listed in Paragraph (2) thereof.
SECTION 16.2. APPLICATIONS OF OTHER SECTIONS. For nay
Top-Heavy Plan Year, the provisions of Section 4.1(d), 5.1 and Article 9 shall
apply only to the extent not inconsistent with Sections 16.3 through 16.7 of the
Plan.
SECTION 16.3. DETERMINATION OF TOP HEAVINESS. (a) Except as
provided in Subsection (3), the Plan is a Top-Heavy Plan for the Plan Year, if,
as of the Determination Date of such Plan Year -
(1) The aggregate of the accrued benefits of Key Employees under
exceeds sixty percent (60%) of the aggregate of the accrued benefits of
all Employees under the Plan unless the Plan is a member of an Aggregation
Group which is not an Aggregation Group described in Subparagraph (2)(B);
or
(2) The Plan is a member of an Aggregation Group -
(a) which is described in Section 16.1(c)(1), and
(b) with respect to which the sum of -
(i) the present value of the cumulative accrued benefits of
all Key Employees under all defined benefit plans within the
Aggregation Group, and
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(ii) the aggregate of the account balances of all Key
Employees under all defined contribution plans in the Aggregation
Group -
exceeds sixty percent (60%) of the sum of -
(i) the present value of the cumulative accrued benefits of
all Employees under all defined benefit plans included in the
Aggregation Group, and
(ii) the aggregate of the accounts of all Employees under all
defined contribution plans in the Aggregation Group.
(3) This Section 16.3 shall not apply if the Plan is a member of
an Aggregation Group other than an Aggregation Group described in
Subparagraph (2)(B) of this Subsection (a).
(b) For purposes of this Section 16.3:
(1) the accrued benefit and/or account balance of any Employee who
is not a Key Employee during the Plan Year but who was a Key Employee with
respect to such plan for any prior plan year shall be disregarded;
(2) the present value of the accrued benefit of an Employee in a
defined benefit plan or the account balance of an Employee in a defined
contribution plan includes any amount distributed with respect to the
Employee under the plan during the plan year which includes the
Determination Date (including distributions under a terminated plan which,
if it had not been terminated, would have been required to be included in
an Aggregation Group) or during any of the
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preceding four plan years, but shall not include any amounts attributable
to employee contributions which are deductible under section 219 of the
Code, any amounts attributable to employee-initiated rollovers or
transfers made from a plan maintained by an unrelated employer or, in the
case of a defined contribution plan, any amounts attributable to
contributions made after the Determination Date unless such contributions
are required by section 412 of the Code or are made for the plan's first
plan year and shall not include benefits distributed or distributable with
respect to any Employee who has not performed services for an Employer or
Affiliate during any of the five plan years ending on the applicable
Determination Date; provided, however, that if an Employee performs no
services for five years and then performs services, the benefits
attributable to such Participant shall be included.
(3) the account balance of a Participant under this Plan as of any
Determination Date shall equal the Participant's account balance
determined under Article 7 as of the Valuation Date coinciding with such
Determination Date.
SECTION 16.4. CONTRIBUTIONS FOR TOP HEAVY YEARS. (a) Except
as provided in Subsection (b), the amount of the Employer Contribution made on
behalf of each Participant who is not a Key Employee for any Plan Year for which
the Plan is a Top-Heavy Plan shall be at least equal to the lesser of:
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(1) three percent (3%) of such Participant's Section 415
Compensation; or
(2) the percentage of Section 415 Compensation represented by the
Employer Contributions (inclusive of Salary Reduction Contributions) made
on behalf of the Key Employee for whom such percentage is the highest for
such Plan Year, determined by dividing the contribution made on behalf of
each such Key Employee by so much of his Section 415 Compensation as does
not exceed $200,000, (or such larger amount permitted under Section
401(a)(17) of the Code) provided such non-Key Employee has not separated
from service at the end of the Plan Year.
Such contributions remain fully nonforfeitable under any circumstances.
(b) Where the inclusion of this Plan in an Aggregation Group
pursuant to Section 16.1(c)(1) enables a defined benefit plan described in
Section 16.1(c)(1) to meet the requirements of Section 401(a)(4) or Section 410
of the Code, the minimum Employer Contribution required under this Section 16.4
shall be the amount specified in Paragraph (a)(1) hereof.
(c) For purposes of this Section 16.4, the amount of Employer
Contributions deemed made on behalf of any Participant shall be equal to the
total Employer Contributions made pursuant to Section 5.1 and allocated to his
Account for the Plan Year; provided, however, that contributions made pursuant
to Section 5.1 on behalf of any Participant who is not a Key Employee shall not
be taken into consideration for purposes of determining
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whether the requirements of paragraph (a) are satisfied with respect to that
Participant.
SECTION 16.5. LIMITATIONS ON COMPENSATION. (a) Except as
provided in Subsection (b), the Compensation of a Key Employee which is taken
into account for purposes of Section 5.1 and 4.6 of the Plan for any Top-Heavy
Plan Year shall not exceed $200,000.
(b) The amount specified in Subsection (a) shall be adjusted in
accordance with applicable cost-of-living adjustments prescribed by the
Secretary of the Treasury pursuant to Section 416(d)(2) of the Code.
ARTICLE 17
TRANSFER OF ACCOUNT BALANCES
This Article applies to Participants who are Transferred Employees,
whose account balances were transferred to the Plan from the Investment Plan for
Salaried Employees of IMC Fertilizer, Inc. (the "IMC Plan") and whose balances
under the IMC Plan were attributable in whole or in part, to amounts transferred
to the IMC Plan from the Freeport-McMoRan Employee Capital Accumulation Program
("ECAP"). The terms of this Plan shall apply in this Article 17 except as
otherwise noted herein.
SECTION 17.1. DISTRIBUTION FROM PARTICIPANT'S ACCOUNTS UPON
Termination of Employment.
(a) LUMP SUM DISTRIBUTIONS. In the event of the termination of
employment of a Participant, and unless the Participant has otherwise elected in
accordance with the Plan, the Participant or his designated beneficiary shall be
entitled
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to receive the value of his Plan Account as of the Valuation Date coincident
with or next following his termination of employment in a lump sum.
(b) DISTRIBUTION AS AN ANNUITY. If a Participant is entitled to
a distribution under the Plan, if he has previously so elected, his Plan Account
as of the Valuation Date on or immediately preceding the date as of which the
distribution is to be made (the "Distribution Starting Date") if the Participant
then has a spouse, shall be applied to the purchase of a nontransferable annuity
providing monthly payments, commencing as soon as of the Distribution Starting
Date to the Participant for his life and, thereafter, monthly payments of 50% of
the monthly payment made to the Participant to such spouse, if surviving, for
the life of such spouse. The annuity certificate shall be issued by an
insurance company selected by the Committee, and the amount of the monthly
payments shall be as determined by such insurance company in accordance with its
then applicable policies (including policies as to minimum monthly annuities)
and actuarial tables and the requirement of the Act.
(c) DISTRIBUTIONS IN THE EVENT OF DEATH WHILE A PARTICIPANT.
Upon the death of a Participant prior to the Distribution Starting Date, if the
Participant has elected an annuity pursuant to Paragraph (b), his Plan Account
as of the Valuation Date on or immediately after the date of death, if the
Participant is then married, shall be applied to the purchase of a
nontransferable annuity providing monthly payments, commencing as soon as
practicable, to the surviving spouse of such
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Participant for the life of such spouse and, upon the death of such spouse, in a
single sum payment to the beneficiary of such spouse specified in the annuity
certificate equal to the excess, if any, of the cost of such annuity over the
sum of the payments made to such spouse. The annuity certificate shall be
issued by the insurance company selected by the Committee, and the amount of the
monthly payments shall be as determined by such insurance company in accordance
with its then applicable policies (including policies as to minimum monthly
annuities) and actuarial tables and the requirements of the Act.
(d) MONTHLY PAYMENTS. A Participant may elect to have his Plan
Account applied to the purchase of a nontransferable annuity providing equal
monthly payments for 60, 120, 180, 240, 300 or 360 months commencing the first
day of the month immediately following the month of the termination of his
status as an Employee. The annuity certificate will be issued by an insurance
company selected by the Committee and the amount of such monthly payments shall
be as determined by such insurance company in accordance with its then
applicable policies (including policies as to minimum monthly annuities) and
actuarial tables.
In the event of the death of the Participant prior to the payment of
the last annuity payment, such payments will be continued to the beneficiary of
such Participant specified in the annuity certificate until the completion of
such installments.
(e) MANNER OF ELECTION OF PAYMENTS. Any Participant electing
any optional form of distribution of his Plan Account
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under this Article 17 shall make such election by delivering an election form as
directed by the Plan Administrator.
(f) ELECTION OF BENEFITS; APPLICATION.
(i) The administrator shall make available to each Participant
such time as to reasonably assure that such Participant will receive the
same not later than 90 days prior to the Distribution Starting Date the
following information, to the extent applicable: a general description of
the retirement benefits specified in subsections (b) and (c) of this
Section 17.1, the circumstances in which such respective benefits will be
provided unless the Participant or former Participant elects not to have
benefits provided in such respective forms, a general description of this
benefits specified in subsections (a) and (d) of this Section 17.1, the
circumstances under which they will be paid if elected, the availability
of such elections and of additional information with respect thereto and a
general explanation of the relative financial effect on the benefit
payable with respect to a Participant of such elections.
(ii) The period within which any election of benefits may be made
under this Section 17.1 shall begin not later than the 90th day prior to
the dispatch of the information specified in subsection (i) and (iii) of
this subsection (f). Any election made hereunder may be revoked until the
expiration of such right of election under this Section 17.1.
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(iii) Upon timely written request, the Administrator will provide,
within 30 days after such written request, by personal delivery or first
class mail, a written explanation in nontechnical language of the terms
and conditions of the retirement benefit specified in subsection (b) and
the financial effect, in term of dollars per annuity payment, upon the
particular Participant's benefit hereunder of making any election under
this Section 17.1.
(iv) If the information specified in subsection (i) is mailed or
personally delivered to such Participant, the written request specified in
subsection (iii), to be timely, must be made within sixty (60) days from
the date of such mailing or delivery.
(v) The Administrator will establish procedures for effective
notification to Participants of other options provided by the Plan at an
adequate time at which such benefits may be elected.
(vi) No benefits under the Plan need be paid to a Participant until
the Participant has applied therefor in writing, specifying the payment
option elected (if not previously specified) and giving such other
information as the Administrator may reasonably specify to enable him to
calculate the annuity payable. If an application for benefits is received
which is complete except that no payment option is specified, benefits
shall be paid in the applicable form specified in subsection (a), unless
the
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Participant has previously specified, and not revoked another form.
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IN WITNESS WHEREOF, IMC-Agrico MP, Inc. has caused its corporate seal to
be hereunto affixed by its officers thereunto duly authorized this _____ day of
_______________, 1993.
IMC-AGRICO MP. INC.
By_________________________________
Vice President
(corporate seal)
ATTEST:
By____________________________
Assistant Secretary
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INVESTMENT TRUST FOR SALARIED EMPLOYEES
OF IMC-AGRICO MP, INC.
As a result of a transfer of assets from the Investment Trust for
Salaried Employees of IMC Fertilizer, Inc. and the Trust for the
Freeport-McMoRan, Inc. Employee Capital Accumulation Program (Predecessor
Trusts) consisting of the account balances of participants in the
respective plans related to those Trusts, IMC-Agrico MP, Inc. hereby
establishes the Investment Trust for Salaried Employees of IMC-Agrico MP,
Inc. to implement the provisions of the Investment Plan for Salaried
Employees of IMC-Agrico MP, Inc. as of July 1, 1993.
For purposes of this Trust the term "Company", when used herein,
shall mean IMC-Agrico MP, Inc.
ARTICLE I
TRUST, TRUSTEES AND TRUST FUND
SECTION 1.1. TRUST. This instrument and the trust evidenced hereby,
as amended from time to time, shall be known as the Investment Trust for
Salaried Employees of IMC-Agrico MP, Inc. (hereinafter referred to as the
"Trust").
SECTION 1.2. TRUSTEE. The Northern Trust Company (hereinafter
referred to as the "Trustee") is hereby designated as Trustee, to receive,
hold, invest, administer and distribute the
<PAGE>
Fund in accordance with the provisions of the Trust.
SECTION 1.3. TRUST FUND. The principal and income assets held under
the Trust by the Trustee, collectively, are herein referred to as the
"Fund". Except as herein otherwise provided, title to assets of the Fund
shall at all times be vested in the Trustee, subject to the right of the
Trustee to hold title in bearer form or in the name of a nominee, and the
interest of others in the assets of the Fund shall be only the right to
have such assets received, held, invested, administered and distributed in
accordance with the provisions of the Trust.
SECTION 1.4. INVESTMENT MANAGER. The Investment Manager appointed
pursuant to Section 7.5.
ARTICLE 2
PLAN AND PARTICIPATING EMPLOYERS
SECTION 2.1. PLAN DEFINITION. The term "Plan" wherever used herein
shall mean the Investment Plan for Salaried Employees of IMC-Agrico MP,
Inc., as amended from time to time.
SECTION 2.2. DELIVERY OF PLAN TO TRUSTEE. The Company shall deliver
to the Trustee a copy of the Plan and of each amendment
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<PAGE>
thereto, for convenience of reference, but the rights, powers, titles,
duties, discretions and immunities of the Trustee shall be governed solely
by the Trust without reference to the Plan.
SECTION 2.3. PARTICIPATING EMPLOYERS. The term "Participating
Employers" wherever used herein shall mean the Company and any other
corporation which is or may in the future become an Employer under the
Plan, and which shall join the Trust pursuant to Section 12.1.
ARTICLE 3
AUTHORIZED EMPLOYER REPRESENTATIVES
The Company, on its own behalf and as agent for each Participating
Employer, shall furnish the Trustees the name and specimen signatures of
the members of the Employee Benefits Committee ("Committee") appointed
from time to time and as defined and described under Section 10.1 of the
Plan and of each other person upon whose statement of the decision or
direction of the Company or the Participating Employers the Trustee is
authorized to rely. Until notified of a change in the identity of such
person or persons the Trustee shall act upon the assumption that there has
been no change.
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<PAGE>
ARTICLE 4
CONTRIBUTIONS
All contributions made under the Plan shall be delivered to the Trustee.
The Trustee shall be accountable for contributions made to the Plan and
included among the assets of the Fund but shall have no responsibility to
determine whether the contributions comply with the provisions of the Plan
or of ERISA.
ARTICLE 5
DISTRIBUTIONS FROM TRUST FUND
SECTION 5.1. COMMITTEE TO DIRECT DISTRIBUTIONS. Distributions in
cash or in kind shall be made from the Fund by the Trustee to such persons
or other entities, in such manner, at such times, in such amounts and for
such purposes as the Committee, or such person designated by the
Committee, shall direct. The Trustee shall also discontinue distributions
from the Fund in accordance with the directions of the Committee, or such
person designated by the Committee. The Trustee shall have no
responsibility as Trustee to see to the application of distributions so
made or to ascertain whether the directions of the Committee, or such
person designated by the Committee, comply with the Plan. If any
distribution to be made from the Fund is not claimed, the Trustee shall
promptly
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<PAGE>
notify the Committee of that fact. Except to the extent that such
information may exist in the Trustee's records, the Trustee shall have no
obligation to search for or ascertain the whereabouts of any distributee
of benefits from the Fund.
SECTION 5.2. WITHHOLDING OF TAXES. The Trustee may withhold, or
require the withholding, from any distribution which it is directed to
make such sum as the Trustee may reasonably estimate is necessary to cover
any taxes for which the Trustee may be liable, which are, or may be,
assessed with regard to such distribution. Upon discharge or settlement
of such tax liability the Trustee shall distribute the balance of such
sum, if any, to the distributee from whose distribution it was withheld,
or if such distributee is then deceased, to such beneficiary of the
participant from whose share it was withheld as the Committee, or such
person designated by the Committee, shall direct. Prior to making any
distribution hereunder the Trustee may require such releases or other
documents from any taxing authority, or may require such indemnity and
surety bond, as the Trustee shall reasonably deem necessary for its
protection.
SECTION 5.3. INTERESTS NON-ASSIGNABLE. No right or interest of any
participant, suspended participant or distributee to receive distributions
from the Fund shall be assignable or transferable in whole or in part,
either directly or by operation of law or otherwise, including, but not by
way of limitation, execution,
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<PAGE>
levy, garnishment, attachment, pledge or bankruptcy, but excluding
devolution by death or mental incompetency, and no right or interest of
any participant or distributee to receive distributions from the Fund
shall be liable for, or subject to, any obligation or liability of such
participant, suspended participant or distributee, including claims for
alimony or the support of any spouse other than claims made pursuant to
any "qualified domestic relations order" as defined in Section 414(p) of
the Internal Revenue Code of 1954, as amended, and directed to be paid to
an alternate payee by the Plan Administrator.
SECTION 5.4. LOANS TO PARTICIPANTS. Loans to Participants shall be
granted and administered by the Committee. The Trustee shall distribute
cash to such Participants who are granted loans in such amount and at such
times as the Committee shall from time to time direct in writing. Loan
payments collected by the Committee shall be forwarded to the Trustee.
The amount of such loans shall be carried by the Trustee as an asset of
the Trust equal to the combined unpaid principal balance. The Trustee -
shall have no responsibility to ascertain whether a loan complies with the
provisions of a plan, for the decision to grant a loan or for the
collection and repayment of a loan.
6
<PAGE>
ARTICLE 6
INVESTMENTS
SECTION 6.1. INVESTMENT FUNDS. The Trustee shall maintain four
investment funds exclusively for the collective investments and
reinvestment of monies directed by the Committee, or such person
designated by the Committee, to be invested in such funds as follows:
(a) A fund to be known as the "Equity Fund" which shall be
invested and reinvested in shares of the Fidelity Equity Income
Fund, Inc.
(b) A fund to be known as the "Bond Fund" which shall be
invested and re-invested in shares of the Bond Fund of America.
(c) A fund to be known as the "Fixed Income Fund" under which
the funds shall be entrusted to one or more insurance companies
or banks, and/or to a portfolio of guaranteed insurance
contracts or other capital preservation investments of different
maturities and interest rates in which a group of retirement or
savings plans may participate, to be chosen at the sole
discretion of the Committee, which companies and, or banks, as
applicable, pursuant to a contract or contracts or other
arrangement to be approved by the Committee, will invest the
funds according to their sole discretion at a fixed or floating
minimum rate of interest on the invested funds. The Trustee
shall only turn over funds to one or more insurance companies or
banks, when it receives specific instructions from the Committee
to do so. The Trustee shall only act or be required to act with
regard to any such insurance or bank contract or other
arrangement where and to the extent it receives specific
directions from the Committee.
(d) A fund to be known as the "Money Market Fund" under which
the funds shall be entrusted to an insurance company or an
investment company to be chosen at the sole discretion of the
Committee, which company, pursuant to a contract or in
accordance with a prospectus approved by the Committee, will
invest funds in short term U.S.
7
<PAGE>
Government and agency obligations, bank certificates of deposits and
banker's acceptances, and high quality corporate obligations. The
Trustee shall only turn over funds to an insurance or investment
company when it receives specific instructions from the Committee to
do so. The Trustee shall only act or be required to act with regard
to any such contract where and to the extent it receives specific
directions from the Committee.
SECTION 6.2. INVESTMENT OF CASH IN INVESTMENT FUNDS. Subject to
contrary instructions from the Committee, any cash held from time to time
in any investment fund may be invested in collective short term investment
funds maintained by the Trustee.
ARTICLE 7
POWERS AND DUTIES OF TRUSTEE
Section 7.1. TRUSTEE'S POWERS. Except as otherwise provided in this
Trust, the Trustee shall have the following powers, rights and duties in
addition to those vested in it elsewhere in the Trust or by law:
A. to retain, manage, improve, repair, operate and control any
asset of the Fund;
B. to sell, convey, transfer, exchange, grant options with respect
to, pledge, or otherwise deal with or dispose of any asset of the Fund in
such manner, for such consideration and upon such terms and conditions as
the Trustee, in its discretion, shall determine;
8
<PAGE>
C. to employ such agents and counsel as may be reasonably necessary
in collecting, managing, administering, investing, distributing and
protecting the Fund or the assets thereof and to pay them reasonable
compensation;
D. to settle, compromise or abandon all claims and demands in favor
of or against the Fund;
E. to vote any corporate stock either in person or by proxy for any
purposes; to exercise any conversion privilege, subscription right or any
other right or option given to the Trustee as the owner of any security
owned by the Fund and to make any payments incidental thereto; to consent
to, take any action in connection with, and receive and retain any
securities resulting from any reorganization, consolidation, merger,
readjustment of the financial structure, sale, lease or other disposition
of the assets of any corporation or other organization, the securities of
which may be an asset of the Fund;
F. to organize and incorporate (or participate in the organization
or incorporation of), under the laws of any state, a corporation for the
purpose of acquiring and holding title to any property which the Trustee
is authorized to acquire for the Fund and to exercise with respect thereto
any of the powers, rights and
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duties it has with respect to other assets of the Fund; and, although
such powers, rights and acts are not specifically enumerated in the Trust;
G. to cause any asset of the Fund to be issued, held or registered
in the name of its nominee, or in such form that title will pass by
delivery, provided the records of the Trustee shall indicate the true
ownership of such asset;
H. to exercise any of the powers and rights of an individual owner
with respect to any property of the Fund and to do all other acts in its
judgment necessary or desirable for the proper administration of the Fund,
although such power, rights and acts are not specifically enumerated in
the Trust.
I. to deposit any part or all of the assets with the Trustee or its
affiliate as trustee, or another person or entity acting as trustee of any
collective or group trust fund which is now or hereafter maintained as a
medium for the collective investment of funds of pension, profit sharing
or other employee benefit plans, and which is qualified under Section
401(a) and exempt from taxation under Section 501(a) of the Code and to
withdraw any part or all of the assets so deposited; any assets deposited
with the trustee of a collective or group trust fund shall be held and
invested by the trustee thereunder pursuant to all the terms and
conditions of the trust agreement or declaration of trust
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establishing the fund, which are hereby incorporated herein by reference
and shall prevail over any contrary provision of this Agreement.
J. to make loans to Participants at the direction of the Committee.
SECTION 7.2. ADVICE OF COUNSEL. The Trustee may consult with legal
counsel, who may be counsel for any Participating Employer, in respect of
any of its rights, duties or obligations hereunder.
SECTION 7.3. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE. The
Trustee shall discharge its duties (i) solely in the interest of
participants and beneficiaries, (ii) for the exclusive purpose of
providing benefits to participants and their beneficiaries and of
defraying reasonable expenses of administering the Plan and (iii) 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. The Trustee shall be indemnified and saved harmless
by the Participating Employers from and against all personal liability to
which the Trustee shall be subjected by reason of carrying out any
directions of the Company, the Committee or other authorized person made
in accordance with the Trust or by reason of failing to take any action
with respect to an investment for which the Committee has
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investment responsibility in the absence of such a direction, including
all expenses reasonably incurred in its defense in case the Participating
Employers fail to provide such defense.
SECTION 7.4. COMPENSATION AND EXPENSES. The Trustee is authorized
and directed to pay from the Trust Fund all Trustee's expenses, taxes and
charges (including fees of its attorneys and agents) incurred in
connection with the collection, administration, management, investment,
protection and distribution of the Fund to the extent they are not paid by
the Participating Employers, provided that, all charges and expenses
incurred in connection with the purchase and sale of investments for
either the Equity Fund, the Bond Fund, the Fixed Income Fund, or the Money
Market Fund shall be charged to the appropriate Fund. The Participating
Employers may pay the Trustee such reasonable compensation as may be
agreed upon from time to time by the Participating Employers and the
Trustee.
SECTION 7.5. INVESTMENT MANAGER. The Company may appoint, in its
sole discretion, an individual or individuals, firm or corporation as
"Investment Manager" which shall be responsible, within the limitations
set forth in the Trust for directing the investment and reinvestment of
one or more of the Equity Fund, the Bond Fund, the Fixed Income Fund or
the Money Market Fund (each referred to below as a "fund"). In such case,
the Company shall promptly notify the Trustee in writing of any such
appointment of
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an Investment Manager. With respect to each fund subject to his
direction, the Investment Manager may either direct the Trustee to make
sales or purchases or the Investment Manager may make sales or purchases
and direct the Trustee to take all necessary action to complete such sales
or investments and the Trustee shall make every sale or investment as
directed in writing by the Investment Manager. It shall be the duty of
the Trustee to act strictly in accordance with each direction. The
Trustee shall be under no duty to question any such direction of the
Investment Manager, to review any securities or other property held in a
fund pursuant to such directions or to make any recommendations to the
Investment Manager with respect to such securities or other property.
To the extent permitted by the Employee Retirement Security Act of
1974, the Trustee shall be under no liability for any loss of any kind
which may result by reason of any action taken by it pursuant to any
direction of the Investment Manager or by reason of its failure to take
any action with respect to any investment which was acquired pursuant to
any such direction in the absence of further directions by the Investment
Manager. The Trustee shall be indemnified and saved harmless by the
Participating Employers from and against any and all personal liability to
which the Trustee may be subjected by carrying out any directions of the
Investment Manager issued pursuant hereto or for failure to act in the
absence
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of directions of the Investment Manager, including all expenses reasonably
incurred in its defense in the event the Participating Employers fail to
provide such defense.
The Trustee may rely upon any order, certificate, notice or direction
or other documentary confirmation purporting to have been issued on behalf
of the Investment Manager which the Trustee believes to be genuine and to
have been issued by the Investment Manager.
The Trustee shall not be charged with knowledge of the termination of
the appointment of the Investment Manager until it receives written notice
of such termination by the Company. In the event an Investment Manager
has not been appointed for any one or more of the Equity Fund, the Bond
Fund, the Fixed Income Fund or the Money Market Fund, the Committee shall
direct the Trustee with respect to investments for any such fund until an
Investment Manager has been appointed for such fund.
The Trustee shall not make any investment review of, consider the
propriety of holding or selling, or vote other than as directed by the
Investment Manager, any assets of the Fund allocated to a fund in
accordance with this Section, except that if the Trustee shall not have
received contrary instructions from the Investment Manager thereof the
Trustee shall invest for short term purposes any cash of a fund in its
custody in bonds, notes and other
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evidences of indebtedness having a maturity date not beyond five years
from the date of purchase, United States Treasury bills, commercial paper,
bankers' acceptances and certificates of deposit, and undivided interests
or participations therein and (if subject to withdrawal on a daily or
weekly basis) participation in common or collective funds composed
thereof.
SECTION 7.6. INSURANCE CONTRACTS. Notwithstanding anything in this
instrument to the contrary, the Company shall have the right from time to
time to deal directly with any insurance carrier or carriers whose
policies or contracts are being held as assets of the Trust Fund,
including, but not by way of limitation, the right to make contributions
directly to such carrier or carriers and to require that payments of
benefits under the Plan be made directly by such carrier or carriers.
Written notice that the Company is dealing directly with an insurance
carrier shall be given to the Trustee, and upon and after receipt of such
written notice, the Trustee shall have no duty or obligation to review the
insurance policy or contract or its implementation, to make any
recommendations with respect to such policy or contract, to enforce the
terms of such policy or contract, nor to determine whether any contribu-
tion or direction from the Company to any such insurance carrier is proper
or within the terms of this Agreement, the Plan, or the policy or
contract.The Trustee shall have no liability or responsibility to the
Company or any beneficiary of the Trust for relying without question on
the written notice described above, and the
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Trustee may assume that the Company will continue to deal directly with
such insurance carrier until receipt of written notice to the contrary
from the Company.
ARTICLE 8
ACCOUNTS AND REPORTS OF THE TRUSTEE
SECTION 8.1. RECORDS AND ACCOUNTS OF THE TRUSTEE. The Trustee shall
maintain accurate and detailed records and accounts of all transactions of
the Trust, which shall be available at all reasonable times for inspection
or audit by any person designated by the Committee or the Company. The
Trustee, at the direction of the Committee or the Company, shall submit to
the auditors for the Company and to others designated by the Committee or
the Company such valuations, reports or other information as they may
reasonably require.
SECTION 8.2. CASH BASIS FOR ACCOUNTS. All accounts of the Trustee
shall be kept on a cash basis.
SECTION 8.3. FISCAL YEAR. The fiscal year of the Trust shall be the
same as that of the Company, and if the Company notifies the Trustee that
the Company has changed its fiscal year, the Trustee shall take the
necessary steps to change the fiscal year of the Trust to correspond
therewith.
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SECTION 8.4. ANNUAL REPORTS. As soon as practicable following the
close of each fiscal year of the Trust and following the effective date of
the removal or resignation of any Trustee, the Trustee shall file with the
Committee and with the Company a written report setting forth all
transactions with respect to the Fund during such fiscal year or during
the period from the close of the last fiscal year to the date of such
removal or resignation and listing the assets of the Fund and the market
value thereof as of the close of the period covered by such report.
SECTION 8.5. APPROVAL OF REPORTS. Upon the receipt by the Trustee
of the Company's written approval of any such report, or upon the
expiration of six months after delivery of any such report to the Company,
such report (as originally stated if no objection has been theretofore
filed by the Company, or as theretofore adjusted pursuant to agreement
between the Company and the Trustee) shall be deemed to be approved by the
Company except as to matters, if any, covered by written objections
theretofore delivered to the Trustee by the Company regarding which the
Trustee has not given an explanation, or made adjustments, satisfactory to
the Company, and the Trustee shall be released and discharged as to all
items, matters and things set forth in such report which are not covered
by such written objections as if such report had been settled and allowed
by a decree of a court having jurisdiction regarding such report and of
the Trustee, the Committee and the Participating Employers. The Trustee,
nevertheless, shall have the right to have
17
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its accounts and reports settled by judicial proceedings if it so elects,
in which event it shall be necessary to join as parties thereto only the
Trustee, the Committee and the Participating Employers (although the
Trustee may also join such other parties as it may deem appropriate).
ARTICLE 9
REMOVAL, RESIGNATION AND SUCCESSION OF THE TRUSTEE
SECTION 9.1. REMOVAL. The Company, by resolution of its Board of
Directors, may remove the Trustee at any time, such removal to take effect
upon the effective date of the appointment of a successor Trustee as
hereinafter provided.
SECTION 9.2. RESIGNATION. Any Trustee may resign by delivering to
the Company a written resignation to take effect upon the 60th day after
the delivery thereof to the Company or upon such earlier date as may be
acceptable to the Company.
SECTION 9.3. APPOINTMENT, QUALIFICATIONS AND POWERS OF SUCCESSOR
TRUSTEE. The Company may appoint additional or successor Trustees at any
time by resolution of its Board of Directors, such appointment to become
effective upon the delivery to any Trustee then in office and to any
removed or resigning Trustee of a copy of such resolution certified by an
officer of the Company and upon written acceptance of the Trust by the
additional or successor
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Trustee so appointed. Each additional or successor Trustee shall have all the
rights, powers, title, discretions, duties and immunities given to, or acquired
by, the original Trustee. The legal title to the assets of the Fund shall be
and remain vested in the Trustees from time to time acting hereunder without
any transfer or conveyance to, by, or from any succeeding or retiring Trustee.
No successor Trustee shall be liable for the acts or omissions of any prior
Trustee or be obliged to examine the accounts, words, acts or omissions of any
prior Trustee. If there shall at any time be more than one Trustee acting
hereunder, such Trustees may act at a meeting, or by writing without a
meeting, and references herein to the Trustee shall be references to the
several Trustees collectively
SECTION 9.4. CHANGES IN ORGANIZATION OF CORPORATE TRUSTEE. In the
event that any corporate Trustee hereunder shall be converted into, shall
merge or consolidate with, or shall sell or transfer substantially all of
its assets and business to, another corporation, state or federal, the
corporation resulting from such conversion, merger or consolidation, or
the corporation to which such sale or transfer shall be made, shall
thereupon become and be a Trustee of the Trust with the same effect as
though specifically so named.
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ARTICLE 10
AMENDMENT OR TERMINATION
SECTION 10.1. AUTHORITY TO AMEND OR TERMINATE. Subject to the
provisions of Section 10.4, the Company shall have the right at any time
and from time to time to amend the Trust in any manner, in whole or in
part, or to terminate the Trust, provided that no amendment which changes
the duties or liabilities of the Trustee shall be made without its written
consent.
SECTION 10.2. METHOD OF MAKING AMENDMENT. Each amendment of the
Trust shall be made by delivery to the Trustee of a written instrument
setting forth such amendment duly executed by the Company, together with a
certified copy of a resolution of the Board of Directors of the Company
authorizing the execution of such written instrument. Such written
instrument (with the consent of the Trustee endorsed thereon, if its
duties or liabilities are changed thereby) shall constitute the instrument
of amendment.
SECTION 10.3. TERMINATION OF TRUST. Termination of the Trust shall
be effected by resolution of the Board of Directors of the Company.
Written notice of such termination, together with a certified copy of such
resolution, shall be delivered to the Trustee, and the Trustee shall
dispose of the Fund in the manner directed in writing by the Committee, or
such person designated by the Committee, or, in the absence of any such
directions, in such
20
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manner as may be directed by a judgment or decree or a court of competent
jurisdiction. The powers of the Trustee hereunder shall continue as long
as any assets of the Fund remain in its hands.
SECTION 10.4. DIVERSION OF FUND PROHIBITED. Subject only to the
provisions of the second paragraph of Section 14.3 of the Plan, at no time
(either by operation, amendment or termination of the Plan or Trust, or
otherwise) shall any part of the Fund (other than such part as is required
to pay taxes and administration expenses) be used for, or diverted to,
purposes other than for the exclusive benefit of employees of the
Participating Employers or their beneficiaries.
ARTICLE 11
CONTINUANCE BY A SUCCESSOR
In the event that the Company, or any corporation which becomes a
Participating Employer under Section 12.1, shall be reorganized by way of
merger, consolidation, transfer of assets or otherwise, so that another
corporation shall succeed to all or substantially all of the business of
the Company or of such Participating Employer, such successor corporation
may be substituted for the Company or the Participating Employer as a party to
the Trust by executing an appropriate supplemental agreement with the Trustee.
21
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ARTICLE 12
PARTICIPATING EMPLOYERS
SECTION 12.1. PARTICIPATING EMPLOYERS MAY JOIN IN AGREEMENT. Any
corporation which shall adopt the Plan pursuant to Section 11.1 of the
Plan thereof shall become a party to the Trust by filing with the Company
and the Trustee a duly executed instrument. Moneys thereafter remitted to
the Trustee by or on behalf of such Participating Employer and its
employees and the income therefrom shall be held by the Trustee as a part
of the Fund.
SECTION 12.2. COMPANY APPOINTED AGENT BY PARTICIPATING EMPLOYERS.
Each Participating Employer which shall become a party to this Trust
pursuant to Article 11 or Section 12.1 by so doing shall be deemed to have
appointed the Company its agent to exercise on its behalf all of the
powers and authorities hereby conferred upon the Company by the terms of
this Agreement, including, but not by way of limitation, the power to
amend this Agreement and to terminate the Trust created hereunder. The
authority of the Company to act as such agent shall continue unless and
until the portion of the Trust Fund held for the benefit of employees of
the particular Participating Employer and their beneficiaries is set aside
in a separate Trust as provided in Section 12.3.
22
<PAGE>
SECTION 12.3. SEPARATION OF FUND. The Company and each other
Participating Employer reserve the right to cause the Trustee to set aside
from the Fund such portion of the Fund as the Committee shall determine to
be held for the benefit of the employees of the corporation (i.e., the
Company or the other Participating Employer, as the case may be) which
shall have elected to exercise such right (such corporation being
hereinafter referred to as the "withdrawing Employer") and their
beneficiaries under the Plan. Any portion which is so segregated shall
thereafter constitute a separate trust fund and shall be held upon a
separate trust identical to that hereby established, except that with
respect thereto this Agreement shall be construed as if the withdrawing
Employer were the only employer named herein. Thereafter, with respect to
such separate trust fund all powers and authority herein conferred upon
the Company shall devolve upon the withdrawing Employer and all power and
authority herein conferred upon the Committee shall devolve upon a
Committee appointed by the withdrawing Employer. Upon the request of a
withdrawing Employer, the Committee, or such person designated by the
Committee, shall given written directions to the Trustee with respect to
such segregation, a copy of which shall be given to each Participating
Employer which shall then be a party to this Trust. Such directions shall
specify not only the amount to be segregated, but the particular assets of
the Fund which shall be used to constitute such separate trust fund. The
Trustee shall follow such directions of the Committee which shall
constitute a
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conclusive determination that the amount and the assets so segregated
represent the share which should be held upon a separate trust for the
benefit of the employees of the withdrawing Employer and their
beneficiaries under the Plan, unless one or more of the Participating
Employers shall file with the Trustee and the Committee a written protest
within 30 days after such directions are given to the Trustee.
ARTICLE 13
CONTROLLING LAW AND LEGAL ACTIONS
SECTION 13.1. CONTROLLING LAW. To the extent not preempted by the
Employee Retirement Income Security Act of 1974, the Trust shall be
construed, enforced and administered according to Illinois law.
SECTION 13.2. LEGAL ACTIONS. The Company shall have the authority
to enforce the Trust on behalf of any and all persons having or claiming
any interest in the Fund.
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ARTICLE 14
MISCELLANEOUS
SECTION 14.1. PROTECTION OF PERSONS DEALING WITH TRUSTEE. No person
dealing with the Trustee shall be required or entitled to see to the
application of any money paid or property delivered to the Trustee, or to
determine whether or not the Trustee is acting pursuant to authorities
granted to it hereunder or to authorizations or directions herein
required.
SECTION 14.2. TAX EXEMPTION OF TRUST. The Trust is hereby
designated as constituting a part of a plan intended to qualify and to be
tax exempt under Section 401(a) and Section 501(a) of the Internal Revenue
Code of 1954, as amended from time to time. Until advised otherwise, the
Trustee may conclusively assume that the Trustee is so qualified and tax
exempt.
SECTION 14.3. NO INTEREST IN PARTICIPATING EMPLOYER GIVEN BY TRUST.
Neither the creation of the Trust nor anything contained in the Trust
shall be construed as giving any person or employee of any Participating
Employer any equity or interest in the assets, business, or affairs of any
Participating Employer or any right to continue in the employ of any
Participating Employer.
25
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SECTION 14.4. GENDER AND PLURALS. In the Trust, words in the
masculine gender shall include masculine or feminine gender, and, unless
the context otherwise requires, words in the singular shall include the
plural, and words in the plural shall include the singular.
ARTICLE 15
EXECUTION
The Trust may be executed in any number of counterparts, each of which
shall be considered an original and no other counterpart need be produced.
IN WITNESS WHEREOF, the Company and the Trustee, to evidence the
establishment of the Trust, have caused the Trust to be signed and their
corporate seals to be hereunto affixed by their authorized officers, all
on this ____day of _____, 1993.
IMC-AGRICO MP, INC.
By:_____________________________
Vice President
(Corporate Seal)
ATTEST:
_____________________________
Secretary
THE NORTHERN TRUST COMPANY,-
26
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Trustee
By:_____________________________
Vice President
(Corporate Seal)
ATTEST:
____________________________
Secretary
27
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Investment Plan for Salaried Employees of IMC-
Agrico MP, Inc. of our report dated July 28, 1994, with respect to the
consolidated financial statements and schedules of IMC Global Inc. (formerly
IMC Fertilizer Group, Inc.) included in its Annual Report (Form 10-K) for the
year ended June 30, 1994, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
May 26, 1995
<PAGE>
Exhibit 23.2
IMC GLOBAL INC.
2100 Sanders Road
Northbrook, Illinois 60062
May 26, 1995
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Dear Sirs:
I consent to the use of my name under the caption "Interests of Named
Experts and Counsel" in the Registration Statement on Form S-8 being filed by
IMC Global Inc. (the "Company") and the Investment Plan for Salaried Employees
of IMC-Agrico MP, Inc. (the "Plan") with respect to the registration of 50,000
shares of Common Stock of the Company and the associated Preferred Stock
Purchase Rights of the Company to be offered in accordance with the terms of the
Plan.
Very truly yours,
MARSCHALL I. SMITH
------------------
Marschall I. Smith
<PAGE>
Exhibit 24
POWER OF ATTORNEY
All of the undersigned, each being a Director and/or Officer of IMC
Global Inc., a Delaware corporation (the "Company"), hereby constitute and
appoint Marschall I. Smith and Allen C. Miller his or her true and lawful
attorneys and agents, each with full power and authority (acting alone and
without the other) to execute in the name and on behalf of each of all of the
undersigned as such Director and/or Officer, a Registration Statement on Form S-
8 under the Securities Act of 1933, as amended, with respect to the registration
of up to 50,000 shares of the common stock, par value $1.00, of the Company, and
the associated Preferred Stock Purchase Rights of the Company, to be offered in
connection with the Investment Plan for Salaried Employees of IMC-Agrico MP,
Inc., to execute any and all amendments to such Registration Statement, and to
deliver on behalf of each or all of the undersigned such Registration Statement
and any and all amendments thereto, as each thereof is so executed, for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 20th day of April, 1995.
WENDELL F. BUECHE DAVID B. MATHIS
- ----------------- ---------------
Wendell F. Bueche David B. Mathis
RAYMOND F. BENTELE THOMAS H. ROBERTS, JR.
- ------------------ ----------------------
Raymond F. Bentele Thomas H. Roberts, Jr.
FRANK W. CONSIDINE JAMES D. SPEIR
- ------------------ --------------
Frank W. Considine James D. Speir
JAMES M. DAVIDSON BILLIE B. TURNER
- ----------------- ----------------
James M. Davidson Billie B. Turner
RICHARD A. LENON
- ----------------
Richard A. Lenon
