<PAGE>
As filed with the Securities and Exchange Commission
on November 21, 1997
Registration No. 333-_____
================================================================================
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 36-3492467
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
(708) 272-9200
(Address of Principal Executive Offices)
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES
OF IMC GLOBAL OPERATIONS, INC.
REPRESENTED BY UNITED STEELWORKERS OF AMERICA AT
CARLSBAD, NEW MEXICO
(Full title of the plan)
Marschall I. Smith
Senior Vice President and General Counsel
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
(847) 272-9200
(Name, address and telephone number,
including area code, of agent for service)
_____________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share offering price registration fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value 20,000 shares(1)(3) $33.57(2) $671,400(2) $204
=============================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be offered
pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rules 457(h)(1) and 457(c) under the Securities Act of 1933,
based upon the average of the high and low sale prices of the Common Stock
of IMC Global Inc. on The New York Stock Exchange on November 20, 1997.
(3) Includes 20,000 associated rights ("Rights") to purchase 1/200 of a share of
Junior Participating Preferred Stock, Series C, par value $1.00 per share.
Rights initially are attached to and trade with the Common Stock of the
Registrant. The value attributable to such Rights, if any, is reflected in
the market price of the Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by IMC Global Inc. (the "Company") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997;
(b) The Salary Reduction Plan for Hourly Employees of IMC Global
Operations, Inc. Represented by United Steelworkers of America at Carlsbad,
New Mexico's Annual Report on Form 11-K for the fiscal year ended June 30,
1996;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997;
(d) The description of the Company's common stock, par value $1.00 per
share (the "Common Stock"), which is contained in the Registration
Statement on Form 8-A/A-1 filed January 12, 1996 under Section 12 of the
Exchange Act, including any subsequent amendment or any report filed for
the purpose of updating such description;
(e) The description of the Company's Rights contained in the Company's
Registration Statement on Form 8-A filed June 23, 1989, as amended by Forms
8-A/A dated September 7, 1995 and January 12, 1996.
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 employee benefit
plan described herein 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 to this Registration Statement 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.
Any statement contained in a document incorporated by, or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
II - 1
<PAGE>
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legal matters in connection with the issuance and due
authorization of the Common Stock offered hereby have been passed upon by
Marschall I. Smith, Esq., Senior Vice President and General Counsel of the
Corporation. As of August 31, 1997, Mr. Smith was the beneficial owner of
approximately 86,000 shares of IMC Global Inc.'s Common Stock, approximately
69,000 of which are shares issuable upon the exercise of currently vested
options or options which will vest within 60 days of the effective date of this
Registration Statement.
Item 6. Indemnification of Directors and Officers
The Company's charter and by-laws provide for indemnification of the
Company's directors and officers for liabilities and expenses that they may
incur in such capacities. In general, directors and officers are indemnified
with respect to actions taken in good faith in a manner reasonably believed to
be in, or not opposed to, the best interests of the Company, and with respect to
any criminal action or proceeding, actions that the indemnitee had no reasonable
cause to believe were unlawful. Reference is made to the Company's charter
incorporated by reference as set forth below as Exhibits 4.1, 4.2, 4.3 and 4.4
hereto, and by-laws set forth below as Exhibit 4.5 hereto.
Section 145 of the General Corporation Law of the State of Delaware
gives corporations the power to indemnify directors and officers under certain
circumstances. In addition, under Section 145, where a director or officer is
successful on the merits or otherwise in the defense of any action, or any
claim, issue or matter therein, the corporation must indemnify such director or
officer against expenses actually and reasonably incurred.
The Company also maintains directors and officers liability and
corporate reimbursement insurance which provides for coverage against loss
arising from claims made against directors and officers in their capacity as
such.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Company will submit or has submitted the Salary Reduction
Plan for Hourly Employees of IMC Global Operations, Inc. Represented by
United Steelworkers of America at Carlsbad, New Mexico (the "Plan") and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely
manner and has
II - 2
<PAGE>
made or will make all changes required by the IRS in order to qualify the Plan.
Exhibit Description of Exhibit
- ------- ----------------------
4.1 Restated Certificate of Incorporation, as amended (incorporated by
reference to the Company's Report on Form 8-K dated November 1, 1994).
4.2 Certificate of Amendment to Restated Certificate of Incorporation, dated
October 20, 1994 (incorporated by reference to Exhibit 3.2 to the Company's
Report on Form 10-K dated September 24, 1997).
4.3 Certificate of Amendment to Restated Certificate of Incorporation, dated
October 23, 1995 (incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form 8-A/A-1 dated January 12, 1996).
4.4 Certificate of Amendment to Restated Certificate of Incorporation, dated
March 1, 1996 (incorporated by reference to Exhibit 4.4 of the Company's
Post-Effective Amendment No. 1 on Form S-8 to Form S-4 (No. 333-0439) dated
March 1, 1996).
4.5 Bylaws of the Company (incorporated by reference to Exhibit 4.5 of the
Company's Registration Statement on Form S-4 dated November 17, 1997).
4.6 Rights Agreement, dated June 21, 1989, between the Company and The First
National Bank of Chicago, as Rights Agent (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).
4.7 Amendment to Rights Agreement, effective as of April 29, 1993 (incorporated
by reference to Exhibit 3.2 to the Company's Registration Statement on Form
8-A/A-1 dated January 12, 1996).
4.8 Amendment to Rights Agreement, dated August 17, 1995 (incorporated by
reference to Exhibit 1 to the Company's Registration Statement on Form 8-
A/A dated September 7, 1995).
5.1 Opinion of Marschall I. Smith, Esq., Senior Vice President and General
Counsel of the Company, as to the legality of the securities being
registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Marschall I. Smith (included in the opinion filed as Exhibit
5.1).
24.1 Powers of Attorney.
II - 3
<PAGE>
99.1 Salary Reduction Plan for Hourly Employees of IMC Global Operations, Inc.
Represented by United Steelworkers of America at Carlsbad, New Mexico.
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 this 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 this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this 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 Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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
II - 4
<PAGE>
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(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
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II - 5
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Northbrook, state of
Illinois, on this 21st day of November, 1997.
IMC GLOBAL INC.
By: /s/ Marschall I. Smith
----------------------
Marschall I. Smith
Senior Vice President
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated:
<TABLE>
<CAPTION>
Signature Title(s) Date
--------- -------- ----
<S> <C> <C>
* Chief Executive Officer November 21, 1997
- --------------------- (principal executive officer),
Robert E. Fowler, Jr. President (principal operating
officer) and Director
/s/ Lynn F. White Senior Vice President November 21, 1997
- --------------------- (principal financial officer)
Lynn F. White
/s/ Anne M. Scavone Vice President and Controller November 21, 1997
- --------------------- (principal accounting officer)
Anne M. Scavone
* Chairman and Director November 21, 1997
- ---------------------
Wendell F. Bueche
* Director November 21, 1997
- ---------------------
Raymond F. Bentele
* Director November 21, 1997
- ---------------------
Rod F. Dammeyer
* Director November 21, 1997
- ---------------------
Dr. James M. Davidson
* Director November 21, 1997
- ---------------------
Harold H. MacKay
</TABLE>
II - 6
<PAGE>
* Director November __, 1997
- ----------------------
David B. Mathis
* Director November __, 1997
- ----------------------
Donald Mazankowski
* Director November __, 1997
- ----------------------
Thomas H. Roberts, Jr.
* Director November __, 1997
- ----------------------
Joseph P. Sullivan
* Director November __, 1997
- ----------------------
Richard L. Thomas
* Director November __, 1997
- ----------------------
Billie B. Turner
*By /s/ Marschall I. Smith
----------------------
Marschall I. Smith
Attorney in Fact
II - 7
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, as amended, the Benefits Committee administering the Salary Reduction
Plan for Hourly Employees of IMC Global Operations, Inc. Represented by
United Steelworkers of America at Carlsbad, New Mexico, has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Northbrook, state of Illinois on
this 21st day of November, 1997.
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES OF IMC
GLOBAL OPERATIONS, INC. REPRESENTED BY UNITED
STEELWORKERS OF AMERICA AT CARLSBAD, NEW MEXICO
By: /s/ Marschall I. Smith
----------------------
Marschall I. Smith
Member of the Benefits Committee
II - 8
<PAGE>
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
-------------------------------------------------------
Exhibit Description of Exhibit
- -------- ----------------------
4.1 Restated Certificate of Incorporation, as amended (incorporated by
reference to the Company's Report on Form 8-K dated November 1, 1994).
4.2 Certificate of Amendment to Restated Certificate of Incorporation,
dated October 20, 1994 (incorporated by reference to Exhibit 3.2 to
the Company's Report on Form 10-k dated September 24, 1997).
4.3 Certificate of Amendment to Restated Certificate of Incorporation,
dated October 23, 1995 (incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form 8-A/A-1 dated January 12,
1996).
4.4 Certificate of Amendment to Restated Certificate of Incorporation,
dated March 1, 1996 (incorporated by reference to Exhibit 4.4 of the
Company's Post-Effective Amendment No. 1 on Form S-8 to Form S-4 (No.
333-0439) dated March 1, 1996).
4.5 Bylaws of the Company (incorporated by reference to Exhibit 4.5 of the
Company's Registration Statement on Form S-4 dated November 17, 1997).
4.6 Rights Agreement, dated June 21, 1989, between the Company and The
First National Bank of Chicago, as Rights Agent (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).
4.7 Amendment to the Rights Agreement, effective as of April 29, 1993
(incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form 8-A/A-1 dated January 12, 1996).
4.8 Amendment to Rights Agreement, dated August 17, 1995 (incorporated by
reference to Exhibit 1 to the Company's Registration Statement on Form
8-A/A dated September 7, 1995).
*5.1 Opinion of Marschall I. Smith, Esq., Senior Vice President and General
Counsel of the Registrant, as to the legality of the securities being
registered.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Marschall I. Smith (included in the opinion filed as
Exhibit 5.1).
*24.1 Powers of Attorney.
II - 9
<PAGE>
*99.1 Salary Reduction Plan for Hourly Employees Represented by Local #35
International Chemical Workers Union at Florida Minerals Operations of
IMC-Agrico MP, Inc.
_____________________
* Filed herewith.
II - 10
<PAGE>
Exhibit 5.1
November 17, 1997
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Re: 20,000 shares of Common Stock, $1.00 par value per share, and
20,000 Preferred Stock Purchase Rights.
-------------------------------------------------------------
Dear Ladies and Gentlemen:
I refer to the Registration Statement on Form S-8 (the "Registration
Statement") being filed by IMC Global Inc., a Delaware corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), relating to (i)
the participations (the "Participations") in the Salary Reduction Plan for
Hourly Employees of IMC Global Operations, Inc. Represented by United
Steelworkers of America at Carlsbad, New Mexico (the "Plan"), and (ii) 20,000
shares of Common Stock, $1.00 par value per share (the "Registered Common
Stock"), together with 20,000 preferred stock purchase rights (the "Registered
Rights") associated therewith, in connection with the Plan. The terms of the
Rights are set forth in the Rights Agreement dated as of June 21, 1989, as
amended by the Amendment to Rights Agreement effective as of April 29, 1993 and
the Amendment to Rights Agreement dated as of August 17, 1995 (collectively, the
"Rights Agreement") between the Company and The First National Bank of Chicago.
I am familiar with the proceedings to date with respect to the Plan
and the Registration Statement, and have examined such records, documents and
matters of law, and satisfied myself as to such matters of fact, as I have
considered relevant for the purposes of this opinion.
Based on the foregoing, I am of the opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Delaware.
2. The Participations will be legally issued and non-assessable,
provided: (i) the Registration Statement, as it may be amended, shall have
become effective under the Act and the Prospectus then in use by the Company
shall comply with the Act and the Rules and Regulations of the Commission
thereunder; and (ii) the Participations shall have been duly issued and paid for
in accordance with the terms of the Plan.
3. Any shares of the Registered Common Stock which are newly issued
in connection with the Plan will constitute shares of Common Stock of the
Company which have
<PAGE>
IMC Global Inc.
November 17, 1997
Page 2
been duly authorized and validly issued and are fully paid and non-assessable
when (i) the Registration Statement shall have become effective under the
Securities Act; (ii) the Company's Board of Directors or a duly authorized
committee thereof shall have duly adopted final resolutions authorizing the
issuance of such shares as contemplated by the Plan; and (iii) certificates
representing such shares shall have been duly executed, countersigned and
registered and duly delivered upon payment of the agreed consideration therefor
(not less than the par value thereof) determined in accordance with the terms of
the Plan.
4. The Registered Rights associated with the newly issued shares of
Registered Common Stock referred to in paragraph 3 will be legally issued when
(i) such Registered Rights shall have been duly issued in accordance with the
terms of the Rights Agreement and (ii) such associated shares shall have been
duly issued and paid for as set forth in paragraph 3.
This opinion is limited to the General Corporation Law of the State of
Delaware and the federal laws of the United States of America.
I do not find it necessary for the purposes of this opinion to cover,
and accordingly I express no opinion as to, the application of the securities or
blue sky laws of the various states.
I have assumed, for the purpose of this opinion, that the Board of
Directors of the Company adopted the Rights Agreement on an informed basis after
reasonable investigation, in the good faith exercise of business judgment in
furtherance of what the Board of Directors honestly and reasonably believed to
be necessary and appropriate to protect the Company from coercive acquisition
techniques and in the best interests of the Company and its stockholders.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Marschall I. Smith
----------------------
Marschall I. Smith
Senior Vice President and General Counsel
<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 Salary Reduction Plan for Hourly Employees of IMC Global
Operations, Inc. Represented by United Steelworkers of America at Carlsbad, New
Mexico and in the related Prospectus of our reports (a) dated July 23, 1997,
except for Note 22, as to which the date is September 5, 1997, with respect to
the consolidated financial statements of IMC Global Inc. included in its Annual
Report on Form 10-K for the year ended June 30, 1997, and (b) dated October 23,
1996, with respect to the financial statements and schedules of the Salary
Reduction Plan for Hourly Employees of IMC Global Operations, Inc. Represented
by United Steelworkers of America at Carlsbad, New Mexico included in the Plan's
Annual Report (Form 11-K) for the year ended June 30, 1996, both as filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
November 17, 1997
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 pertaining to the Salary
Reduction Plan for Hourly Employees of IMC Global Operations, Inc. Represented
by United Steelworkers of America at Carlsbad, New Mexico and in the related
Prospectus of our report dated January 22, 1996, included in the IMC Global Inc.
Annual Report on Form 10-K for the year ended June 30, 1997 filed with the
Securities Exchange Commission. It should be noted that we have not audited any
financial statements of the company subsequent to June 30, 1995 or performed any
audit procedures subsequent to the date of our report.
/s/ Arthur Andersen LLP
Chicago, Illinois
November 17, 1997
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Robert E. Fowler, Jr.
- -------------------------
Robert E. Fowler, Jr.
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Wendell F. Bueche
- ---------------------
Wendell F. Bueche
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Raymond F. Bentele
- ----------------------
Raymond F. Bentele
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Rod F. Dammeyer
- -------------------
Rod F. Dammeyer
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Dr. James M. Davidson
- -------------------------
Dr. James M. Davidson
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Harold H. MacKay
- --------------------
Harold H. MacKay
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ David B. Mathis
- -------------------
David B. Mathis
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Donald Mazankowski
- ----------------------
Donald Mazankowski
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Thomas H. Roberts, Jr.
- --------------------------
Thomas H. Roberts, Jr.
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Joseph P. Sullivan
- ----------------------
Joseph P. Sullivan
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Richard L. Thomas
- ---------------------
Richard L. Thomas
<PAGE>
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Robert E.
Fowler, Jr., Marschall I. Smith and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, Registration Statements on Form S-8
under the Securities Exchange Act of 1934, as amended, relating to the
registration of shares of the common stock of the Company to be issued pursuant
to (i) the Salary Reduction Plan for Hourly Employees represented by Local #35
International Chemical Workers' Union at Florida Minerals Operations of IMC-
Agrico MP, Inc. and (ii) the Salary Reduction Plan for Hourly Employees of IMC
Global Operations Inc. Represented by the United Steelworkers of America at
Carlsbad, New Mexico (collectively, the "Registration Statements"), and to
execute and deliver any and all amendments to such Registration Statements 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. The undersigned
hereby grants to such attorneys 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 28th day of October, 1997.
/s/ Billie B. Turner
- --------------------
Billie B. Turner
<PAGE>
Exhibit 99.1
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES
OF
IMC GLOBAL OPERATIONS INC.
Represented by
United Steelworkers of America
at Carlsbad, New Mexico
(As Amended and Restated Effective January 1, 1996)
<PAGE>
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES
OF
IMC GLOBAL OPERATIONS INC.
Represented by
United Steelworkers of America
at Carlsbad, New Mexico
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Article Section Page
- ------- ------- ----
<S> <C>
ARTICLE 1 TITLE........................................................ 1
ARTICLE 2 DEFINITIONS.................................................. 1
ARTICLE 3 PARTICIPATION
Section 3.1. Eligibility Requirements................................. 6
Section 3.2. Applications............................................. 6
Section 3.3. Termination of Participation............................. 7
Section 3.4. Safe-Harbor For Leased Employees......................... 7
ARTICLE 4 SALARY REDUCTION CONTRIBUTIONS
Section 4.1. Contributions Allowed.................................... 8
Section 4.2. Changes in Amount of Contributions....................... 9
Section 4.3. Automatic Suspension of Contributions.................... 9
Section 4.4. Voluntary Suspension of Contributions.................... 9
Section 4.5. Rollover Contributions................................... 10
Section 4.6. Contribution Percentage.................................. 11
Section 4.7. Definitions.............................................. 12
Section 4.8. Special Rules............................................ 13
Section 4.9. Distribution of Excess Aggregate Contributions........... 14
Section 4.10. Actual Deferral Percentage............................... 14
Section 4.11. Definitions.............................................. 15
Section 4.12. Special Rules............................................ 16
Section 4.13. Distribution of Excess Deferrals......................... 16
Section 4.14. Distribution of Excess Contributions..................... 17
Section 4.15. Aggregate Rule........................................... 18
ARTICLE 5 EMPLOYER CONTRIBUTIONS
Section 5.1. Amount of Contributions.................................. 19
Section 5.2. Statutory Limitations on Contributions................... 19
Section 5.3. Limitation Year.......................................... 22
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Article Section Page
- ------- ------- ----
<S> <C>
ARTICLE 6 TRUST AND INVESTMENT PROVISIONS
Section 6.1. Trustee.................................................. 22
Section 6.2. Investment of Contributions.............................. 23
Section 6.3. Limitations on Investment Directions..................... 24
Section 6.4. Change in Investment Direction........................... 24
Section 6.5. Investment Income........................................ 25
Section 6.6. Expenses of Funds........................................ 25
Section 6.7. Investment Manager....................................... 25
Section 6.8. ERISA Section 404(c) Plan................................ 26
ARTICLE 7 PARTICIPANTS' PLAN ACCOUNTS
Section 7.1. Plan Accounts and Vesting................................ 27
Section 7.2. Units.................................................... 28
Section 7.3. Valuation of Funds....................................... 29
Section 7.4. Valuation of Fund Sub-Accounts as of a Valuation Date.... 29
Section 7.5. Value of Plan Accounts................................... 29
Section 7.6. Committee to Furnish Annual Statements of Value of
Plan Accounts............................................ 29
Section 7.7. Transfers from Other Savings and Profit Sharing Plans.... 29
ARTICLE 8 WITHDRAWALS, DISTRIBUTION AND LOANS
Section 8.1. Hardship Withdrawal from Employer, Employee and Salary
Reduction Accounts....................................... 32
Section 8.2. Other Withdrawals from Salary Reduction Account.......... 34
Section 8.3. Distribution Upon Election to Discontinue Contributions
for an Indefinite Period................................. 35
Section 8.4. Loans.................................................... 36
Section 8.5. Distribution Upon Termination of Employment.............. 39
Section 8.6. Time and Manner of Distributions......................... 39
Section 8.7. Designation of Beneficiary............................... 39
Section 8.8. Distribution to Minor and Disabled Distributees.......... 41
Section 8.9. Deferral of Distribution upon Termination of Employment.. 41
Section 8.10. Conditions for Distributions to Beneficiary, Upon Death
of a Participant......................................... 44
Section 8.11. Direct Rollovers......................................... 45
ARTICLE 9 SPECIAL RULES RELATING TO RE-EMPLOYMENT OF TERMINATED
EMPLOYEES AND EMPLOYMENT BY RELATED ENTITIES................. 45
ARTICLE 10 ADMINISTRATION
Section 10.1. The Committee............................................ 46
Section 10.2. Plan Administrator....................................... 48
Section 10.3. Claims Procedure......................................... 48
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Article Section Page
- ------- ------- ----
<S> <C>
Section 10.4. Notices to Participants and Distributees................. 49
Section 10.5. Notices to Committee or Employers........................ 50
Section 10.6. Records.................................................. 50
Section 10.7. Reports of Trust Fund.................................... 50
ARTICLE 11 PARTICIPATION BY OTHER EMPLOYERS
Section 11.1. Adoption of Plan......................................... 50
Section 11.2. Withdrawal from Plan..................................... 51
Section 11.3. Company as Agent for Employers........................... 51
ARTICLE 12 CONTINUANCE BY A SUCCESSOR................................... 51
ARTICLE 13 NON-ASSIGNABILITY EXCEPTIONS FOR DOMESTIC RELATIONS
ORDERS AND LOANS............................................. 52
Section 13.1. Domestic Relations Orders................................ 52
Section 13.2. Loans.................................................... 53
ARTICLE 14 MISCELLANEOUS
Section 14.1. Expenses................................................. 53
Section 14.2. Non-Assignability........................................ 53
Section 14.3. Employment Non-Contractual............................... 54
Section 14.4. Limitation of Rights..................................... 54
Section 14.5. Merger or Consolidation with Another Plan................ 54
Section 14.6. Reversion of Employer Contributions...................... 54
ARTICLE 15 AMENDMENT, WITHDRAWAL AND TERMINATION
Section 15.1. Amendment................................................ 55
Section 15.2. Withdrawal............................................... 55
Section 15.3. Termination.............................................. 56
Section 15.4. Trust to be Applied Exclusively for Participants
and Their Beneficiaries.................................. 56
Section 15.5. Distribution Upon Sale of Assets......................... 57
Section 15.6. Distributions Upon Sale of Subsidiary.................... 57
</TABLE>
-iii-
<PAGE>
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES
OF
IMC GLOBAL OPERATIONS INC.
Represented by
United Steelworkers of America
at Carlsbad, New Mexico
----------------------------------
The Salary Reduction Plan for Hourly Employees of IMC Global
Operations Inc. Represented by United Steelworkers of America at Carlsbad, New
Mexico (the "Plan," previously known as the "Salary Reduction Plan for Hourly
Employees of IMC Fertilizer, Inc. Represented by United Steelworkers of America
at Carlsbad, New Mexico") was adopted effective July 1, 1983.
This amendment and restatement is effective January 1, 1996 unless
otherwise noted. In all cases where this Plan refers to a person, the reference
pertains to both genders.
ARTICLE 1
----------
TITLE
-----
The title of this Plan is the "Salary Reduction Plan for Hourly
Employees of IMC Global Operations Inc. Represented by United Steelworkers of
America at Carlsbad, New Mexico."
ARTICLE 2
----------
DEFINITIONS
-----------
As used herein, the following words and phrases shall have the
following respective meanings unless the context clearly indicates otherwise:
(1) Active Participant. A participant who is presently making
contributions to the Plan pursuant to Section 4.1.
(2) Administrator. The Plan Administrator appointed by the Company
pursuant to Section 10.2. and as defined in ERISA.
<PAGE>
(3) 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).
(4) 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.
(5) Break in Service. Any period during which an Employee is not
employed by an Employer which is not included in a Period of
Employment and which is in excess of twelve months.
(6) Code. The Internal Revenue Code of 1986, as amended, and the
regulations issued thereunder.
(7) Committee. The Committee appointed pursuant to Section 10.1.
(8) Company. IMC Global Operations Inc., a Delaware corporation, and
any organization which shall succeed to the business of such
corporation and adopt the Plan pursuant to Article 12.
(9) Compensation. Regular straight time hourly earnings for all
straight time hours actually worked, and vacation pay.
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. For Plan Years beginning prior to
January 1, 1997, in the case of a participant who is a Highly
Compensated Employee and who is a "5-percent owner" (as defined in
Section 416(i)(1)(A)(iii) of the Code) or one of the ten most
highly compensated Employees of an Employer, all members of the
family unit which includes such Employee will be treated as one
Employee and the limitations set forth in the preceding sentence
will be allocated among all the members of such family unit in
proportion to their amount of compensation. For this purpose, a
family unit of a person includes that person, his or spouse, and
his or her lineal descendants who have not attained age 19 before
the end of the Plan Year. For purposes of Article 4 the term
"compensation" shall have the meaning prescribed in Section 414(s)
of the Code and for purposes of Section 5.2, the term
"compensation" shall have the meaning prescribed by Section 415 of
the Code.
(10) Direct Rollover. A Direct Rollover is a payment by the Plan to
the Eligible Retirement Plan specified by the Distributee.
(11) 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
-2-
<PAGE>
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.
(12) 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 401(a) of
the Code, that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving spouse, an Eligible Retirement Plan
is an individual retirement account or individual retirement
annuity.
(13) 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; 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.)
(14) Employee. An individual who is employed by an Employer.
Notwithstanding anything in this Plan to the contrary, an
individual who provides services to an Employer pursuant to a
written agreement with an entity that is not an Employer or
pursuant to a contract that identifies the individual as an
independent contractor shall not be an Employee, regardless of
the individual's employment status under common law. 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 (a) not less than 20% of the voting stock
of such foreign corporation is owned by an employer; (b) the
employer has entered into an agreement under Section 3121(1) of
the Code which applies to such foreign corporation; (c) the
employee is a citizen or permanent resident of the United States;
and (d) 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.
(15) 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
-3-
<PAGE>
participation in the Plan pursuant to Section 11.2, or shall
terminate its participation in the Plan pursuant to Section 15.3,
such corporation shall thereupon cease to be an Employer.
(16) Employer Contributions. The contributions made by an Employer
pursuant to Section 5.1.
(17) ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
(18) Family Member. An individual described in Section 414(q)(6)(B)
of the Code.
(19) Highly Compensated Employee. Effective January 1, 1997, a
Participant or former Participant who is a highly compensated
employee as defined in Code Section 414(q). Generally, any
Participant or former Participant is considered a Highly
Compensated Employee if such Participant or former Participant:
a) was a "five percent owner" (as defined in Code Section
416(i)) at any time during the Plan Year or the preceding
Plan Year, or
b) for the preceding Plan Year received Compensation (as
defined in Code Section 414(q)) from the Employer in excess
of $80,000 (as adjusted for cost-of-living increases
pursuant to Section 414(q)(1) of the Code) and, if an
Employer elects, was in the top-paid group of Employees for
such preceding Plan Year.
(20) Investment Manager. The investment manager who may be appointed
pursuant to Section 6.7.
(21) Military Service. Effective December 12, 1994, the performance
of duty on a voluntary or involuntary basis in a uniformed
service, within the meaning of the Uniformed Services Employment
and Reemployment Rights Act of 1994, for a period not longer than
five years.
(22) Non-Highly Compensated Employee. An Employee of an Employer who
is not a Highly Compensated Employee.
(23) 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.
(24) Period of Employment. Each period of time during which an
Employee is employed by an Employer. An Employee's employment
shall not be terminated by reason of a leave of absence from
active employment granted
-4-
<PAGE>
by his Employer, pursuant to a policy uniformly applied in all
similar circumstances, because of (a) military service,
attendance at a school or training program at the request of his
Employer, government service in a civilian capacity, jury duty,
or layoff; or (b) because of disability, provided that if he does
not return to active employment with an Employer before the later
of (i) the time specified in his leave, or if not specified
therein, three years from the inception thereof, or (ii)
cessation of his disability, as the case may be, his employment
shall be considered terminated as of the earlier of twelve months
after the last day of the month in which such leave began and the
last day of the month in which such leave of absence terminated.
Maternity or paternity leave shall be deemed to be a Period of
Employment where necessary to prevent a Break in Service, either
in the Plan Year such leave is begun or the following Plan Year.
An Employee's absence from Service because of compulsory
engagement in military service shall be considered a leave of
absence granted by his Employer and notwithstanding any provision
of the first paragraph of this subsection shall not terminate his
Service if he returns to active employment with an Employer
within thirty days following the period of time during which he
has reemployment rights under any applicable federal law.
(25) Plan. The plan herein set forth, as from time to time amended.
(26) Plan Accounts. The sum of a Participant's Employer Account,
Salary Reduction Account and Rollover Account.
(27) Plan Year. The accounting period of the Company for federal
income tax purposes. Effective July 1, 1997, the Plan Year shall
mean the calendar year.
(28) Salary Reduction Contributions. The contributions made by an
Employer pursuant to Section 4.1(a) on behalf of an Active
Participant in lieu of current Compensation.
(29) Service. If ever required by the terms of this Plan or by
operation of law to determine eligibility, participation or
vesting, an Employee's Service shall be the total of his Periods
of Employment by an Employer. Any Break in Service of twelve
months or less shall be included in an Employee's Service.
(30) Trust. The trust created by agreement between the Company and
the Trustee, as from time to time amended.
(31) 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.
-5-
<PAGE>
(32) Trust Fund. All money and property of every kind held by the
Trustee under the Trust.
(33) Union. United Steelworkers of America at Carlsbad, New Mexico.
(34) Valuation Date. The last day of each calendar month. Effective
April 1, 1996, the Valuation Date shall be each business day.
(35) Voice Response System. The Marshall & Ilsley Mi Retirement Line
automated voice response system.
ARTICLE 3
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PARTICIPATION
-------------
Section 3.1. Eligibility Requirements.
(a) Active Participants. A person who:
(i) is an Employee of an Employer at Carlsbad, New Mexico;
(ii) is paid on an hourly basis;
(iii) falls within the Carlsbad jurisdiction of the Union; and
(iv) has an effective application under Section 3.2 on file with the
Committee; shall be eligible to be a Participant in the Plan and shall
commence active participation on the date specified in subsection (b).
(b) Commencement Date for Active Participation. A person who has
satisfied the conditions of subsection (a) above shall become an Active
Participant as soon as practicable following the date such conditions are first
satisfied.
Section 3.2. Applications. An eligible Employee under Section
3.1(a) may become an Active Participant by applying through the Voice Response
System, in the manner prescribed by the Committee. Such application must be
made prior to the date upon which participation is to commence or, if
participation is to commence on an effective date, such application must be made
prior to a date to be prescribed by the Committee and communicated to all
eligible Employees. Such
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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 bi-weekly contributions from the Employee's
Compensation in the amount specified by the Employee pursuant to 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 Employer or from an Employer to an Affiliate, 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
leased employees within the meaning of Section 414(n)(2) of the Code, but no
such leased employee shall become a participant in, or be entitled to
contributions under, the Plan.
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ARTICLE 4
----------
SALARY REDUCTION CONTRIBUTIONS
------------------------------
Section 4.1. Contributions Allowed. A Participant shall elect to
participate in the Plan by electing to have his Employer contribute to the Trust
Fund on his behalf in an amount the Employee has authorized, through the Voice
Response System, to forego in current Compensation. These contributions shall be
known as Salary Reduction Contributions.
(a) Salary Reduction Contributions. An Employer shall contribute to
the Trust Fund on behalf of each Active Participant employed by the Employer, an
amount equal to the amount the Active Participant has authorized by the Voice
Response System to forego in current Compensation. A Participant may elect an
amount which shall be in whole dollar increments ranging from $5.00 to $250.00
per pay period. Such contributions shall be delivered to the Trustee no later
than 10 days after each bi-weekly pay period. Notwithstanding the foregoing, no
contributions may be made under this paragraph, unless such contribution
complies with the provisions of Article 5 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).
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 of Salary Reduction Contributions in any calendar year which
exceeds $9500 (or such amount as in effect for such year under Section 402(g) of
the Code). In the event a Participant's Salary Reduction Contributions under
this Subsection in any calendar year exceed $9500, or such Salary Reduction
Contributions in any calendar year, when combined with any other cash or
deferred arrangement contributions in such
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calendar year, exceed $9500 (or such other amount as in effect for such year
under Section 402(g) of the Code), such excess, if it occurs under this
Subsection 4.1(a) shall be distributed to the Participant along with any accrued
interest or earnings thereon no later than April 15 of the calendar year
succeeding the year in which such excess was contributed. If such excess occurs
as a result of contributions made under this Subsection 4.1(a) when combined
with any other cash or deferred arrangement contributions made by the
Participant, then the excess will be distributed pursuant to Section 4.13 below.
(b) Military Service. Notwithstanding any provision of this Plan to
the contrary, effective December 12, 1994, Salary Reduction Contributions will
be permitted for periods of Military Service upon a Participant's reemployment
by an Employer after such Military Service, as required by the Uniformed
Services Employment and Reemployment Rights Act of 1994 and in accordance in
with Section 414(u) of the Code.
Section 4.2. Changes in Amount of Contributions. The amount of an
Active Participant's Salary Reduction Contributions, in each case as a
percentage of Compensation, shall continue in effect until the Active
Participant changes the amount of such contributions. An Active Participant may
change the amount of his Salary Reduction Contributions within the limitations
prescribed in Section 4.1 using the Voice Response System.
Section 4.3. Automatic Suspension of Contributions. An Active
Participant's 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 written notice, in the form prescribed by the
Committee, to his Employer, suspend his
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Salary Reduction Contributions effective as soon as practicable following the
date such notice has been given. Such a voluntarily suspended Participant may,
by notifying the Voice Response System, regain active status in the Plan at any
time following the suspension of contributions for at least six 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.
(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 may be made only in accordance with Article 8 of the
Plan and such distributions shall be valued in accordance with Sections 7.3
through 7.5 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) distributions received by an Employee
which are eligible for tax-free rollover to a qualified plan
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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 (1) were previously
distributed to the Employee by another qualified plan, (2) were eligible for
tax-free rollover to a qualified plan, (3) were deposited in such conduit
individual retirement account within sixty (60) days of receipt thereof, and (4)
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
transfer would result in the Plan's being required to provide for a life annuity
form of payment.
Section 4.6. Contribution Percentage.
(a) Effective July 1, 1997, the Average Contribution Percentage for
the current Plan Year for Eligible Participants who are Highly Compensated
Employees for such Plan Year shall not exceed the Average Contribution
Percentage for the immediately preceding Plan Year for Eligible
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Participants who are Non-Highly Compensated Employees for such immediately
preceding Plan Year multiplied by 1.25; or
(b) Effective July 1, 1997, the Average Contribution Percentage for
the current Plan Year for Eligible Participants who are Highly Compensated
Employees for such Plan Year shall not exceed the Average Contribution
Percentage for the immediately preceding Plan Year for Eligible Participants who
are Non-Highly Compensated Employees for such immediately preceding Plan Year
multiplied by 2, provided that the Average Contribution Percentage for the
current Plan Year for Eligible Participants who are Highly Compensated Employees
for such Plan Year does not exceed the Average Contribution Percentage for the
immediately preceding Plan Year for Eligible Participants who are Non-Highly
Compensated Employees for such immediately preceding Plan Year by more than two
(2) percentage points or such lesser amount as described in Section 4.15.
Section 4.7. Definitions. For purposes of this Article 4, the
following definitions shall apply.
(a) "Average Contribution Percentage" shall mean the average
(expressed as percentage) of the Contribution Percentages of the Eligible
Participants in a group.
(b) "Contribution Percentage" shall mean the ratio (expressed as a
percentage), of Employer Contributions under the Plan on behalf of the Eligible
Participant for the Plan Year to the Eligible Participant's Compensation for the
Plan Year while an Eligible Participant.
(c) "Eligible Participant" shall mean any Employee of the Employer who
is otherwise authorized under the terms of the Plan to have Employer
Contributions allocated to his account for the Plan Year.
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Section 4.8. Special Rules.
------------ --------------
(a) For purposes of this Article 4, the Contribution Percentage for
any Eligible Participant who is a Highly Compensated Employee for the Plan Year
and who is eligible to receive Employer Contributions or Salary Reduction
Contributions allocated to his account under two or more plans described in
Section 401(a) of the Code 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.
(b) In the event that this Plan satisfies the requirements of Section
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 Article 4 shall be applied by
determining the Contribution Percentages of Eligible Participants as if all such
plans were a single plan.
(c) For Plan Years beginning prior to January 1, 1997, for purposes of
determining the Contribution Percentage of an Eligible Participant who is a
Highly Compensated Employee, the Employer Contributions and Compensation of such
Participant shall include the Employer Contributions and Compensation of Family
Members to the extent required by Section 401(k) 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.
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Section 4.9. Distribution of Excess Aggregate Contributions.
(a) In General. Excess Aggregate Contributions and income allocable
thereto shall be distributed no later than the last day of each Plan Year to
Participants to whose accounts Excess Aggregate 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 Employer Contributions for the Plan Year by a fraction, the
numerator of which is the Excess Aggregate Contributions on behalf of the
Participant for the preceding Plan Year and the denominator of which is the sum
of the Participant's account balances attributable to Employer Contributions as
of the last day of the preceding 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 Employer Contributions for the Plan Year.
(e) Accounting for Excess Aggregate Contributions. Excess Aggregate
Contributions shall be distributed from the Participant's Employer Account in
proportion to the Participant's Employer Contributions for the Plan Year.
Section 4.10. Actual Deferral Percentage.
(a) Effective July 1, 1997, the Average Actual Deferral Percentage for
the current Plan Year for Eligible Participants who are Highly Compensated
Employees for such Plan Year shall not exceed the Average Actual Deferral
Percentage for the immediately preceding Plan Year for
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Eligible Participants who are Non-Highly Compensated Employees for such
immediately preceding Plan Year multiplied by 1.25; or
(b) Effective July 1, 1997, the Average Actual Deferral Percentage for
the current Plan Year for Eligible Participants who are Highly Compensated
Employees for such Plan Year shall not exceed the Average Actual Deferral
Percentage for the immediately preceding Plan Year for Eligible Participants who
are Non-Highly Compensated Employees for such immediately preceding Plan Year
multiplied by 2, provided that the Average Actual Deferral Percentage for the
current Plan Year for Eligible Participants who are Highly Compensated Employees
for such Plan Year does not exceed the Average Actual Deferral Percentage for
the immediately preceding Plan Year for Eligible Participants who are Non-Highly
Compensated Employees for such immediately preceding Plan Year by more than two
(2) percentage points or such lesser amount as described in Section 4.15.
Section 4.11. Definitions. For purposes of Section 4.10 and
succeeding Sections in Article 4, the following definitions shall be used.
(a) "Actual Deferral Percentage" 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 while an Eligible Participant.
(b) "Average Actual Deferral Percentage" shall mean the average
(expressed as a percentage) of the Actual Deferral Percentages of the Eligible
Participants in a group.
(c) "Eligible Participant" 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.
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Section 4.12. Special Rules.
------------- -------------
(a) For purposes of Section 4.10 and succeeding subsections in Article
4, the Actual Deferral Percentage for any Eligible Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to have Salary
Reduction Contributions allocated to his account under 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 Salary Reduction
Contributions were made under a single arrangement.
(b) For Plan Years beginning prior to January 1, 1997, 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, Excess Deferral
Amounts and income allocable thereto shall be distributed no later than April 15
of each year to Participants who claim such allocable Excess Deferral Amounts
for the preceding calendar year.
(b) For purposes of this Section, "Excess Deferral Amount" shall mean
the amount of Salary Reduction Contributions for a calendar year that the
Participant allocates to this Plan pursuant to the claim procedure set forth in
(c) below.
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(c) The Participant's claim shall be in writing, shall be submitted
to the Plan Administrator no later than March 1; 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, 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 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) Notwithstanding any other provision of the Plan, Excess
Contributions and income allocable thereto shall be distributed 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 preceding 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.
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(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
distributed to the Participant; and shall, if there is a loss allocable to the
Excess Contributions, 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.
(e) Accounting for Excess Contributions. Amounts distributed under
this Section 4.14 shall 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(b) are both used, then the sum of the Average Contribution
Percentages and Average Deferral Percentages of Highly Compensated Employees for
the Plan Year may not exceed the greater of:
(a) The sum of:
(i) 1.25 times the greater of the Average Contribution Percentage or
Average Deferral Percentage of all Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year, and
(ii) The lesser of such Average Deferral Percentage and Average
Contribution Percentage of all Eligible Participants who are Non-
Highly Compensated Employees for the Plan Year times two or plus
two percentage points, whichever is less; or
(b) The sum of:
(i) 1.25 times the lesser of the Average Contribution Percentage or
Average Deferral Percentage of all Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year, and
(ii) The greater of such Average Deferral Percentage and Average
Contribution Percentage of all Eligible Participants who are Non-
Highly Compensated Employees for the Plan Year times two or plus
two percentage points, whichever is less.
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If the limitation described immediately above is exceeded, then the
tests described in Section 4.6 and 4.10 must be applied by using the test of
either Section 4.6(a) or Section 4.10(a). If such test cannot be met then the
reduction methods described in Article 4 shall be applied.
ARTICLE 5
----------
EMPLOYER CONTRIBUTIONS
----------------------
Section 5.1. Amount of Contributions.
------------ -----------------------
(a) Effective July 1, 1997, subject to the limitations set forth in
Section 5.2, each Employer shall contribute bi-weekly for and on account of each
Active Participant employed by such Employer, an amount equal to 35% of the
amount contributed bi-weekly by such Active Participant pursuant to Section
4.1(a) 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 the
fiscal year which includes the calendar month for which the contribution is
made. Employer Contributions made pursuant to this paragraph (a) shall be
allocated to the Employer Account of each Active Participant.
(b) All Employer Contributions are nonforfeitable when made.
(c) This Plan is designed to qualify as a profit-sharing plan for
purposes of Sections 401(a), 402, 404 and 412 of the Code.
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 Plan Accounts
during the Limitation Year which constitutes:
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(i) Employer Contributions,
(ii) Salary Reduction Contributions,
(iii) Employee Contributions,
(iv) Forfeitures, and
(v) Amounts described in Sections 415(l)(1) and 419A(d)(2) of the
Code.
(b) Maximum Annual Addition. The maximum Annual Addition that may
be contributed or allocated to a Participant's Plan Accounts 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,
and the sum of (1) and (2) below shall not exceed 1.
(1) The aggregate Annual Additions as of the close of such Plan
Year to the Participant's Plan Accounts and in all other
defined contribution plans maintained by his Employer and its
Affiliates divided by the lesser of:
a) 125% of the aggregate maximum dollar amount which under
Section 415(c)(1)(A) of the Code (as adjusted for
increases in the cost of living in accordance with
Treasury Regulations) could have been contributed on
behalf of the Participant to a defined contribution plan
for all of the Participant's years of Service, and
b) 35% of the aggregate of the Participant's Compensation
for all of the Participant's years of Service.
(2) The aggregate projected annual benefit of the Participant
under all defined benefit plans maintained by his Employer
and its Affiliates (determined as of the close of such
Limitation Year) divided by the lesser of:
a) 125% of the maximum dollar limitation contained in Section
415(b)(1)(A) of the Code for such Limitation Year (as
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adjusted for increases in the cost of living in accordance
with Treasury Regulations), and
b) 140% of the average of the Participant's Compensation for
the three consecutive calendar years of his participation in
such defined benefit plans during which his Compensation was
the highest.
(c) Special Rules. The Compensation limitation referred to in
Section 5.2(b)(ii) shall not apply to:
(i) Any contribution for medical benefits (within the meaning of
Section 419A(f)(2) of the Code) after separation from Service
which is otherwise treated as an Annual Addition, or
(ii) Any amount otherwise treated as an Annual Addition under Section
415(l)(1) of the Code.
(d) Definitions. For purposes of this Section 5.2, "Defined
Contribution Dollar Limitation" shall mean $30,000 (as adjusted for cost-of-
living increases pursuant to Section 415(d) of the Code).
The term "his Employer and its Affiliates" shall include all
corporations and unincorporated businesses which are members of the same
controlled group of corporations under Section 414(b) of the Code or under
common control under Section 414(c) of the Code, as the case may be, with the
Participant's Employer and for this purpose more than 50% control as referenced
in Section 415(h) of the Code shall apply. The terms "defined contribution
plan" and "defined benefit plan" shall have the meanings set forth in Section
415 of the Code. Salary Reduction Contributions shall be treated as Employer
contributions.
(e) If the limitations set forth in the first clause of Section 5.2(b)
above would be exceeded by an Employer's contributions on behalf of a
Participant, first Employee Contributions (should Employee contributions ever be
permitted under the Plan) and next Salary Reduction
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Contributions which are included in the Annual Additions described in 5.2(a)
above, together with any earnings thereon, will be distributed to the
Participant to the extent of such excess. If, after application of the
foregoing rule, as a result of the allocation of forfeitures, a reasonable error
in estimating a Participant's annual Compensation, or under other facts and
circumstances, the Annual Additions to a Participant's Plan Accounts in fact
exceed either of the limitations described in 5.2(b) for a Limitation Year, the
excess amount shall be withdrawn from the Participant's Plan Accounts and
deposited in a suspense account for such Limitation Year. Such suspense account
shall remain invested in the Fixed Income Fund and shall be allocated during
succeeding Plan Years among the Participants' Plan Accounts until the amount in
such suspense account is exhausted. If, during a Limitation 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
Limitation 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 Company and the Trustee. All contributions under
the Plan shall be paid to
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the Trustee, and the Trustee shall have 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 person or persons and in such amounts as the Committee 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 means of the Voice Response System, direct that his Salary Reduction
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 1% to any combination of the following funds.
(a) An Equity Fund which at the discretion of the Committee shall be
invested in mutual fund or similar investment vehicle which consists
substantially of equity securities of U.S. corporations.
(b) A Bond Fund which at the discretion of the Committee shall be
invested in a mutual fund or similar investment vehicle which consists
substantially of investments in marketable corporate debt securities, U.S.
Government securities, mortgage related securities and other asset-backed
securities intended to preserve capital.
(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 participate, to be chosen at the sole discretion of the Committee, which
companies
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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
its sole discretion at fixed or floating rate of interest on the invested funds.
(d) A Balanced Fund which shall be invested at the discretion of the
Committee, in a mutual fund and other investment vehicle providing an investment
mix.
Section 6.3. Limitations on Investment Directions. No contributions
may be directed under Section 6.2 where the instructions (a) would violate the
provisions of the Plan, (b) would cause a Plan fiduciary to maintain the indicia
of ownership of any Plan assets outside the jurisdiction of the United States
District Courts, (c) would jeopardize the Plan's tax qualified status, (c) could
bring about a loss in excess of a Participant's account balance, or (e) would
result in a direct or indirect acquisition, sale or lease of property between a
Participant and the Company or an Affiliate, or a direct or indirect loan to the
Company or an Affiliate.
Section 6.4. 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. Effective April 12, 1996, in accordance with
rules and procedures established by the Committee, a Participant may elect
effective on any Valuation Date to change his investment direction and/or
transfer his existing account balances in any fund or funds to any other fund or
in increments of no less than 1% of such account balances and/or contributions
of funds.
Notwithstanding any other provision of this Section 6.4 or the Plan to
the contrary, effective July 1, 1991, no transfer of existing account balances
shall be permitted by a Participant between the Fixed Income Fund and the Bond
Fund, or between the Bond Fund and the Fixed
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Income Fund. Any change in investment direction shall be made through the Voice
Response System in the manner prescribed by the Administrator.
Section 6.5. 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 6.6. 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 6.7. Investment Manager. The Company may appoint an
individual, or individuals, firm or corporation, which 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 Equity Fund, the Bond Fund,, the Fixed Income
Fund and the Balanced 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.
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(b) The Investment Manager shall acknowledge that it is a fiduciary
with respect to the Plan and the assets of the Plan subject to its control and
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.
(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 Equity Fund, the Bond Fund, the Fixed Income Fund or the
Balanced 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.
Section 6.8. ERISA Section 404(c) Plan. The Plan is intended to meet
the requirements of Section 404(c) of ERISA and the provisions of the Plan shall
be construed and interpreted to meet such requirements. The fiduciaries of the
Plan may be relieved of liability for any losses which are the direct and
necessary result of investment instructions given by a Participant or
Beneficiary.
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ARTICLE 7
----------
PARTICIPANTS' PLAN ACCOUNTS
---------------------------
Section 7.1. Plan Accounts and Vesting. Effective April 1, 1989,
Participants' Plan Accounts were measured in dollars. Effective April 1, 1996,
Participants' Plan Accounts are measured in units of participation ("Units").
(a) Plan Accounts. 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:
(i) Employer Account. This account shall reflect the value (in
units) of all Employer Contributions made pursuant to Section
5.1, all investment earnings, gains, expenses and losses
(realized and unrealized), and the amount of any withdrawals and
distributions from the account.
(ii) Salary Reduction Account. This account shall reflect the value
(in units) of amounts contributed under Section 4.1(a),
investment earnings, gains, expenses and losses (realized and
unrealized), and the amount of any withdrawals and distributions
from the account.
(iii) Rollover Account. This account shall reflect the value (in
units) of amounts contributed under Section 4.5, investment
earnings, gains, expenses and losses (realized and unrealized),
and the amount of any withdrawals or distributions from the
account.
Each of the foregoing accounts shall be composed of an Equity Fund
Sub-Account, a Bond Fund Sub-Account, a Fixed Income Fund Sub-Account and a
Balanced 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 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 Plan Accounts.
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Section 7.2. Units.
(a) The interest of Participants in the funds shall be measured by
units in the particular fund, with gain or loss determined on a daily basis as
of each Valuation Date as provided in the succeeding subsections. Each unit
shall have an equal beneficial interest in the fund, and none shall have
priority or preference over any other.
(b) One unit is allocated to each of the Employer and Salary Reduction
Accounts maintained for each Participant for each unit paid to the Trust on
behalf of such Participant by an Employer prior to the first Valuation Date, and
one unit is allocated to the Rollover Account maintained for each Participant
for each unit paid to the Trust pursuant to Article 4 prior to such date. Units
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 as practicable after the first Valuation Date,
the Trustee determined 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 units 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 unit in such fund as of such Valuation Date
and constitutes the initial gain or loss of a unit in such fund. Fractional
units shall be calculated to six decimal places. 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 units under this subsection.
(c) If a Participant's interest in a fund or any part thereof is
distributed, withdrawn or transferred to an interest account pursuant to Article
8 of the Plan, the number of units 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 units in such fund.
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Section 7.3. Valuation of Funds. The funds are valued on a unit
method applied on a daily basis. 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 market value shall be binding and conclusive upon all
parties. Employer Contributions 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(a) 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 units allocated or allocable to each such sub-account as of such Valuation
Date.
Section 7.5. Value of Plan Accounts. The value of a Participant's
Plan Accounts as of any Valuation Date shall be the sum of the values of the
sub-accounts comprising the Participant's Accounts as described in Section
7.1(a).
Section 7.6. Committee to Furnish Annual Statements of Value of Plan
Accounts. The Committee shall, not less frequently than annually, deliver to
each Participant a statement setting forth the account balances of such
Participant.
Section 7.7. Transfers from Other Savings and Profit Sharing Plans.
(a) Transfer from the Other Plan to this Plan: Account Credits.
Whenever a participant in any other savings or profit sharing plan for salary
employees of the Company (the
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"Other Plan") ceases pursuant to the terms of the Other Plan to be an eligible
employee, and he is not entitled, under the terms of the Other Plan, to receive
a distribution thereunder, but he thereafter becomes eligible to, and elects to
become, a Participant in this Plan, then such Participant's interest in the
Other Plan shall be transferred to the Trustee of this Plan to be held,
invested, reinvested and distributed pursuant to the terms of the Plan and the
Trust, and, as of the date of the transfer of any such Participant's interest in
the Other Plan,
(i) there shall be credited to the Employee Account of such
Participant that portion of his interest in the Other Plan which
is transferred to the Trustee and which represents the
Participant's contribution to the Other Plan,
(ii) there shall be credited to the Employer Account of such
Participant that portion of his interest in the Other Plan which
is transferred to the Trustee and which represents the
Employer's contributions to the Hourly Plan, if any, made on his
behalf, and
(iii) there shall be credited to the Salary Reduction Account of
such Participant that portion of his interest in the Other Plan
which is transferred to the Trustee and which represents salary
reduction contributions, if any, to the Other Plan.
Any amounts credited to a Participant's Employee Account, Employer
Account, Salary Reduction Account or Rollover Account shall be applied by
crediting units to such account, the units 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 to the appropriate sub-accounts of
such account.
(b) Transfer of Loan Account Balances. Any outstanding balance(s)
owed by a Participant for loan(s) granted to the Participant under the Other
Plan shall be transferred concurrently with the crediting of his interest to the
Plan as described at Section 7.7(a). All accounting of the loan(s) as assets of
the Other Plan account, applicable amortization, interest on the balance
outstanding, repayment credits and promissory note shall concurrently be
transferred to the
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Plan Accounts established for the Participant, to preclude any default under or
distribution by the Other Plan. The promissory note evidencing any such loan,
and all other documents evidencing any loan under the Other Plan, shall be
concurrently transferred to the Participant's Plan Accounts. In the event a
Participant's transfer of employment from another participating Employer changes
such Participant's current payroll status, any outstanding loan balance will be
reamoritized in accordance with the terms of the Plan.
(c) Distribution Under the Plan. Notwithstanding any provision of the
Other Plan to the contrary, upon a Participant's termination of employment,
while a Participant under this Plan, his total interest in the Plan, including
any amount transferred from the Other Plan, shall be distributed pursuant to the
provisions of Article 8 of this Plan, unless distribution pursuant to the
corresponding provisions of the Other Plan as necessary to preserve the
Participant's protected benefits under Section 411(d)(6) of the Code.
(d) Transfer from this Plan to the Other Plan: Account Credits.
Whenever a Participant in the Plan ceases pursuant to its terms to be an
eligible Employee, and he is not entitled, under the terms of the Plan, to
receive a distribution hereunder, but he thereafter becomes eligible to and
elects to become a participant in a Other Plan, then his interest hereunder
shall be transferred to the Trustee of the Other Plan to be held, invested,
reinvested and distributed pursuant to the terms of the Other Plan and its
trust, and as of the date of the transfer of any such Participant's interest in
this Plan,
(i) there shall be subtracted from the Employer Account of the
Participant that portion of his interest in this Plan which is
transferred to the Other Plan's trustee and which represents the
Employer Contributions to this Plan, if any, made on his behalf,
and
(ii) there shall be subtracted from the Salary Reduction Account of
the Participant that portion of his interest in this Plan which
is transferred to the Other Plan
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trustee and which represents Salary Reduction Contributions, if
any, to this Plan.
ARTICLE 8
----------
WITHDRAWALS, DISTRIBUTION AND LOANS
-----------------------------------
Section 8.1. Hardship Withdrawal from Employer, Employee and Salary
Reduction Accounts.
(a) Hardship Withdrawal from Employer and Employee Accounts. As of
any given date a Participant may make a request to withdraw a portion of the
combined value of his Employer and Employee Accounts; 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 to the Administrator on
a form prescribed by him. The value of a Participant's Employee and Employer
Accounts shall be determined pursuant to Sections 7.4 and 7.5, as applicable.
The Committee shall not approve any such application unless it is satisfied
based on the application and supporting documentation that to deny the
application would create a hardship for the Participant. For purposes of this
Section 8.2(a) only, hardship shall be limited to the following situations:
(i) 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;
(ii) inability to purchase or finance out of any other source
reasonably available to the Participant a principal residence
for the Participant;
(iii) 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;
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(iv) 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.
(b) Hardship Withdrawal from Salary Reduction Accounts. A Participant
may request in writing 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 and 7.5, 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 to obtain medical treatment of the Participant,
Participant's spouse or dependents,
(ii) Expenses for the purchase (excluding mortgage payments) of the
principal residence of the Participant,
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(iii) Tuition and room and board expenses for the next twelve month
period of post-secondary education of the Participant, the
Participant's spouse, children or dependents; and
(iv) Expenses to prevent the eviction from, 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 withdrawals and loans available to him under
this Plan and any other qualified plan maintained by the Employers.
A Participant who receives a hardship withdrawal under this Section
8.2(b) will be suspended from Plan participation for twelve months from the date
on which he receives his hardship withdrawal.
Salary Reduction Contributions made by such Participant in the
calendar year following the year of hardship distribution will be limited to the
annual dollar limitation 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 8.2. Other Withdrawals 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:
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(a) Disability Withdrawal. A Participant may make a cash withdrawal
from his Salary Reduction Account at any time if the withdrawal is on 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 Group Benefits Program
for U.S.Union Hourly Employees of IMC Global Inc., 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 Committee may limit the amount which a disabled Participant may
withdraw from his accounts, if the Committee deems such limitation is in the
best interests of the Participant. The value of the Participant's account as of
the requested withdrawal date shall be determined pursuant to Sections 7.4 or
7.5, 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 8.3. Distribution Upon Election to Discontinue Contributions
for an Indefinite Period. As of any given date, an Active Participant may
elect, using the Voice Response System, to discontinue his contributions for an
indefinite period. Upon such discontinuance by a Participant, the Administrator
shall 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.
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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.
The value of the Participant's Accounts (excluding the Salary
Reduction Account) shall be determined pursuant to Section 7.4. A Participant
who elects to discontinue his contributions pursuant to this Section shall be
ineligible to again elect to make contributions to the Plan for a period of
twelve months from the date of the election to discontinue contributions.
Section 8.4. Loans. Upon application of an Active Participant, 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:
(a) 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.
(b) A general purpose loan may not be used to purchase securities.
(c) 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.
(d) The amount of a loan shall not exceed the lesser of 50% of the
value of the Participant's accounts or $50,000, and the loan shall be secured by
the value of the Participant's Plan Accounts. The Committee may require the
posting of other or additional security at any time during the term of the loan.
The amount of a loan secured by the Plan Accounts shall be equal to a maximum of
the lesser of 50% of the Plan Accounts or $50,000, minus the highest outstanding
loan balance within the past year. For purposes of this paragraph, the value of
the Participant's Plan
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Accounts shall be determined as at the Valuation Date which next succeeds the
date on which the request for the loan is received.
(e) A loan shall be evidenced by a promissory note.
(f) 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 bi-weekly payroll deductions except for prepayments or where
otherwise permitted by the Committee. Loan payments by inactive Employees or
former Employees shall be made monthly to the Plan Administrator or his designee
on the date and in the manner prescribed by him.
(g) Loans shall be granted on a reasonably equivalent basis and Highly
Compensated Employees, officers or shareholders of an Employer shall not be
granted preferential loan terms.
(h) 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 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 default or in the case
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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. Alternately, the Committee may treat the entire
unpaid balance of a loan deemed in default as a distribution from the Plan. The
Participant or Beneficiary shall remain personally liable for any remaining
deficiency.
(i) Appropriate disclosure shall be made pursuant to the Truth in
Lending Act to the extent applicable.
(j) Amounts of principal and interest received on a loan shall be
credited to the Participant's Plan Accounts and the loan shall be considered an
asset of the Plan Accounts.
(k) The Committee shall, from time to time, establish the terms and
conditions on which the 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 thereof, the Committee shall
adopt uniform and non-discriminatory rules and its determination shall be final
and binding.
(l) Notwithstanding any other provision of this Section 8.5 to the
contrary, loans may be granted only to Participants who are "parties in
interest" as defined under Section 3(14) of ERISA. Determination of who is a
party in interest shall be made by the Plan Administrator with the advice of
counsel.
(m) In the event a Participant's transfer of employment from another
participating Employer changes such Participant's current payroll status, any
outstanding loan balance will be reamoritized in accordance with the terms of
the Plan.
Section 8.5. Distribution Upon Termination of Employment. Whenever
a Participant terminates his employment with his Employer or its Affiliate, then
the Participant, or, in
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a proper case, his Beneficiary, shall be entitled to a distribution of an amount
equal to the value of the Participant's Plan Accounts determined as of the
Valuation Date on which the distribution is processed.
Section 8.6. Time and Manner of Distributions.
(a) Any distribution to which a Participant becomes entitled by reason
of a withdrawal under Sections 8.1, 8.2 or 8.3 or distribution under Section
8.5, or which is to be made to an alternate 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 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 8.5 because the
Participant cannot be located, the undistributed balance of such amount shall
remain invested in such fund or funds in which such amount had been invested
immediately prior to the date of termination or request for receipt.
Section 8.7. 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.
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(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.
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 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, (i) to the surviving spouse of such deceased
Participant, if any, or (ii) if there shall be no surviving spouse, the
surviving children of such deceased Participant, if any, in equal shares, or
(iii) if there shall be no surviving spouse or children, to the executors or
administrators of the estate of such deceased Participant, or (iv) 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
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persons who 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 8.8. 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 Distributee pursuant to this
Section.
Section 8.9. Deferral of Distribution upon Termination of
Employment.
(a) Notwithstanding anything in this Article or Plan to the contrary,
a Participant who is terminating his employment and is eligible for early or
normal retirement under any pension plan of the Company will be permitted to
elect, at any time prior to his termination, to defer receipt of distribution of
his entire Plan Accounts.
A Participant electing deferral of his distribution under this Section
8.9 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.
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Prior to December 31, 1996, 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. Effective December 31, 1996, a
Participant who is not a "five percent owner" (as defined in Section 416(i) of
the Code) may elect to defer receipt of a distribution under this Section 8.10
until April 1 of the calendar year following the later of the calendar year in
which the Participant attains age 70 1/2 or the calendar year in which the
Participant terminates employment.
Any Participant who makes a deferral election under this Section
8.9(a) shall retain for the full duration of the deferral period the authority
to direct investments of his Plan Accounts, as provided under Section 6.2, 6.3
and 6.4. This Paragraph shall not be interpreted to allow or require the making
of any type of contributions to such Participant's Plan Accounts.
(b) A Participant who satisfies the following criteria must consent to
any distribution before it is made and is entitled to defer receipt of his
entire Plan Accounts until no later than his 70th birthday: (i) termination of
employment prior to eligibility for early or normal retirement under any pension
plan of the Company and (ii) a Plan Accounts valued in excess of $3500 as of the
Valuation Date occurring closest to his termination of employment. Such a
Participant may elect to receive the value of his entire Plan Accounts 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. Effective for calendar years
commencing after December 31, 1996, a Participant who is not a "five percent
owner" (as defined in Section 416(i) of the Code) and who meets the requirements
of (i) and (ii) above is entitled to defer receipt of his entire Plan Accounts
until no later than April 1 of the calendar year following the later of the
calendar year in which the Participant attains age 70 1/2 or the calendar year
in which the Participant terminates employment.
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Any Participant who makes a deferral election under this Section 8.10(b) shall
retain, for the full duration of the deferral period, the authority to direct
investments of his Plan Accounts, as provided under Sections 6.2, 6.3 and 6.4.
This paragraph shall not be interpreted to allow or require the making of any
type of contributions to such Participant's Plan Accounts.
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) At the time the Participant elects to defer receipt of his
distribution pursuant to this Section, he must also elect to receive his
distribution in: (i) a lump sum on the date of distribution or (ii) in
substantially equal annual installments not to exceed ten, which installments
shall commence on the date requested for distribution.
(d) At the time the Participant elects to defer 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 Accounts (i) in a lump sum within sixty days
following the date of his death or (ii) 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 Accounts shall begin not later than the
sixtieth day after the latest of the close of the Plan Year in which occurs:
(i) his termination of employment,
(ii) the tenth anniversary of the commencement of his participation
in the Plan, or
(iii) his 65th birthday,
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except to the extent that the Participant has elected to defer the distribution
pursuant to this Section 8.9.
(f) Notwithstanding subsection (e) and except as provided otherwise in
this subsection (f), distribution of a Participant's Plan Accounts shall be made
no later than the 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. Effective for calendar years beginning after December 31, 1996,
with respect to a Participant other than a "five percent owner" (as defined in
Section 416(i) of the Code), distribution of a Participant's Plan Accounts shall
be made no later than April 1 of the calendar year following the later of the
calendar year in which the Participant attains age 70-1/2 or the calendar year
in which the Participant terminates employment.
(g) If the amount of a distribution required to commence on the date
determined under this subsection cannot be 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 8.10. Conditions for Distributions to Beneficiary, Upon
Death of a Participant.
(a) Notwithstanding subsections (c) and (d) of Section 8.10 or any
other section of the Plan, if a Participant dies prior to entire distribution of
his Plan Accounts and after attainment of age 70, his Plan Accounts shall be
distributed to his Beneficiary as rapidly as the method in effect for
distributions to the Participant.
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(b) Notwithstanding Section 8.10 to the contrary, if the Participant
dies prior to entire distribution of his Plan Accounts and prior to age 70, his
Plan Accounts shall be distributed in a lump sum or by the method selected by
the Participant, provided that distribution shall begin not later than (i)
December 31, of the calendar year following the calendar year of the
Participant's death or (ii) the calendar year in which the Participant would
have attained age 70, whichever is later.
Section 8.11. 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 RE-EMPLOYMENT
---------------------------------------
OF TERMINATED EMPLOYEES AND EMPLOYMENT
--------------------------------------
BY RELATED ENTITIES
-------------------
If a terminated Participant who is entitled to receive payments
pursuant to Sections 8.6(b) 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 the later of such Participant's subsequent termination of
employment or his attainment of age 70.
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ARTICLE 10
-----------
ADMINISTRATION
--------------
Section 10.1. The Committee.
(a) A Committee consisting of four (4) members, two of which shall be
appointed by the Company and two of which shall be appointed by the Union, shall
administer the Plan (except for duties specifically vested in the Trustee and
the Investment Manager). The Employee Benefits Committee of the Company shall
appoint the two Company members of the Committee. The Company, the Union and
the Committee shall be "named fiduciaries" within the meaning of such term as
used in ERISA. The Employee Benefits Committee 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 and the Union. 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
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Committee, furnish 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 and delivery of
contributions to the Trustee from time to time.
(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 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
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familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims.
(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 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.
Section 10.3. Claims Procedure. If any Participant or Distributee
believes he is entitled to benefits in an 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
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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
Committee within the same 65-day period. If a request is so filed, review of the
denial shall be made by the Committee within, unless special circumstances
require an extension of time, 60 days after receipt of such request, and the
claimant shall be given written notice of the resulting final decision. If
special circumstances require an extension of time, the claimant shall be so
advised in writing within the initial 60-day period and in no event shall such
extension exceed 60 days. 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
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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. Notices 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 addresses specified upon
such forms.
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
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corporation and (c) 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
participant in the Plan at any time by filing with the Committee a duly
certified copy of a 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.
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
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date of any such reorganization, such successor corporation shall not have
elected to become a party to the Plan, or if the Employer 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
-----------
NON-ASSIGNABILITY EXCEPTIONS FOR
--------------------------------
DOMESTIC RELATIONS ORDERS AND LOANS
-----------------------------------
Section 13.1. Domestic Relations Orders. 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 Plan Accounts may be made to an Alternate
Payee (as defined in Code Section 414(p)), pursuant to a "qualified domestic
relations order" prior to attainment of age 50 or separation from service by the
Participant if the "qualified domestic relations order" provides that the Plan
and the
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Alternate Payee may agree in writing to an earlier distribution and distribution
is made pursuant to such written agreement.
Section 13.2. Loans. 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 whole or part from the Participant's Plan
Accounts. If the Participant or the Beneficiary does not agree that the
indebtedness is a valid claim against his Plan Accounts, he shall be entitled to
a review of the validity of the claim in accordance with Section 10.3.
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
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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.
Section 14.3. Employment Non-Contractual. The Plan confers no right
upon any Employee to continue in employment.
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 effected 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. However, any contribution made by the Company by reason of a good
faith mistake of fact, or the portion of any contribution made by the Company
which exceeds the maximum amount for which a deduction is allowable to the
Company for federal income tax purposes by reason of a good faith mistake in
determining the
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maximum allowable deduction, shall upon the request of the Company be returned
by the Trustee to the Company. The Company's request and the return of any such
contribution must 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 Company
pursuant to this paragraph shall be the excess of (a) the amount contributed
over (b) 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 Company, but losses attributable thereto shall reduce the amount so
returned. If return to the Company 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 Company shall be limited so as to avoid such reduction.
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 Plan
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
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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 total amount credited
to the Plan Accounts of the Participants and former Participants of such
Employer.
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.
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.
If the Internal Revenue Service shall refuse to issue an initial
favorable determination letter that the Plan and Trust as adopted by an Employer
meet the requirements of Section 401(a) of the Code and that the Trust is exempt
from tax under Section 501(a) of the Code, the Employer may terminate its
participation in the Plan and the Committee shall direct the Trustee to pay and
deliver the portion of the Trust Fund applicable to the Participants and former
Participants of such Employer, determined pursuant to Section 15.2, to such
Employer and such Employer shall pay to Participants or their Beneficiaries the
part of such Employer's portion of the Trust Fund as is attributable to
contributions made by Participants.
Section 15.4. Trust to be Applied Exclusively for Participants and
Their Beneficiaries. Subject only to the provisions of the second paragraph of
Section 15.3 and any other provision of the Plan to the contrary
notwithstanding, it shall be impossible for any part of the Trust to be used for
or diverted to any purpose not for the exclusive benefit of Participants and
their Beneficiaries either by operation or termination of the Plan, by power of
amendment or by other means.
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Section 15.5. 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
Affiliated Employer, of substantially all of the assets used by the Employer in
the trade or business in which the Participant is employed.
Section 15.6. 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 Affiliated Employer, of an incorporated Affiliated Employer's
interest in a subsidiary to Participants employed by such subsidiary.
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IN WITNESS WHEREOF, IMC Global Operations Inc. has caused its
corporate seal to be hereunto affixed by its officers thereunto duly authorized
this ________ day of ________, 1997.
IMC GLOBAL OPERATIONS INC.
By:
__________________________________
(Corporate Seal)
ATTEST:
- ------------------------------
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