<PAGE>
As filed with the Securities and Exchange Commission on December 31, 1998
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)
2100 SANDERS ROAD 60062
NORTHBROOK, ILLINOIS (Zip Code)
(Address of principal executive offices)
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES OF IMC-AGRICO, INC. REPRESENTED BY
LOCAL #826 INTERNATIONAL CHEMICAL WORKERS UNION
(Full title of the plan)
J. BRADFORD JAMES
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
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 Amount Maximum Maximum Amount of
Securities to be to be Offering Aggregate Registration Fee
Registered Registered Price Per Offering
Share Price
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 20,000 shares(2) $20.9375(3) $418,750.00(3) $117.00
$1.00 par value(1)
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Rights to purchase 1/200 of a share of Series C Junior Participating
Preferred Stock, par value $1.00 per share, initially are attached to and
trade with the shares of common stock being registered hereby. The value
attributable to such rights, if any, is reflected in the market price of
such common stock.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered pursuant to the employee benefit plan described herein.
(3) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
average of the high and low sale prices of the common stock reported on the
New York Stock Exchange on December 30, 1998.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents (Commission File No. 1-09759) heretofore filed
with the Securities and Exchange Commission (the "Commission") by IMC Global
Inc., a Delware Corporation (the "Company"), are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998, the
Company's Current Reports on Form 8-K dated January 14, 1998,
April 1, 1998, October 28, 1998, November 17, 1998 and December
31, 1998, and the Company's Current Reports on Form 8-K/A which
were filed with the Commission on June 15, 1998 and
September 16, 1998;
(c) The description of the common stock being registered hereby,
which is contained in the Company's Registration Statement on
Form 8-A/A-1 filed January 12, 1996 under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any subsequent amendment or any report filed for the
purpose of updating such description; and
(d) The description of the Rights to purchase 1/200 of a share of
Series C Junior participating Preferred Stock, par value $1.50
per share (the "Rights"), which is 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 with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and all documents
filed by the Salary Reduction Plan for Hourly Employees of IMC Agrico, Inc.
Represented by Local #826 International Chemical Workers Union (the "Plan")
pursuant to Section 15(d) of the Exchange Act, after the date of this
registration statement and prior to the filing of a post-effective amendment
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 (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (the "DGCL") permits a Delaware
corporation to indemnify any persons who are, or are threatened to be made,
parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation), by reason of the fact
that such person was an officer or director of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include
expenses(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such officer or director acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his or her conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation in the performance of
his or her duty. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation
must indemnify him or her against the expenses which such officer or director
actually and reasonably incurred.
The Company's Restated Certificate of Incorporation, as amended,
provides that the Company will indemnify each officer and director of the
Company to the fullest extent permitted by applicable law. The Company's
By-Laws provide that each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan, will be indemnified by the Company to the full extent
permitted by the DGCL. The indemnification rights conferred by the Company's
Restated Certificate of Incorporation, as amended, are not exclusive of any
other right to which persons seeking indemnification may be entitled under
any law, By-Law, agreement, vote of stockholders or disinterested directors
or otherwise. The Company is authorized to purchase and maintain (and the
Company maintains) insurance on behalf of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 3.1 to the Company's Current Report on Form 8-K
dated October 21, 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 Annual 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 to the
Company's Post-Effective Amendment No. 1 on Form S-B to Form S-4
(Registration No. 333-0439) dated March 1, 1996)
4.5 By-laws of the Company (incorporated by reference to Exhibit 4.5 to
the Company's Registration Statement on Form S-4 (Registration No.
333-40377) dated November 17, 1997)
II-2
<PAGE>
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)
4.9* Salary Reduction Plan for Hourly Employees of IMC-Agrico, Inc.
Represented by Local #826 International Chemical Workers Union
23.1* Consent of Ernst & Young LLP
23.2* Consent of PricewaterhouseCoopers LLP
23.3* Consent of Arthur Andersen, Chartered Accounts
23.4* Consent of Arthur Andersen, LLP
24* Form of Power of Attorney
</TABLE>
- -----------------------------
*Filed herewith.
The Company will submit or has submitted the Plan and any amendment
thereto to the Internal Revenue Service (the "IRS") in a timely manner and
has made or will make all changes required by the IRS in order to qualify the
Plan under Section 401 of the Internal Revenue Code of 1986, as amended.
ITEM 9. UNDERTAKINGS.
(a) The Company 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, as amended (the "Securities Act");
(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 hereof) 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
end 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 a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(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;
II-3
<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, 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 Exchange Act that
are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, 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 remained unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Northbrook, State of Illinois on
this 31st day of December, 1998.
IMC GLOBAL INC.
By: /s/ J. BRADFORD JAMES
----------------------------------
J. Bradford James
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated,
on this 31st day of December, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chief Executive Officer, Director and Chairman of
- ----------------------- the Board (principal executive officer)
Robert E. Fowler, Jr.
* President, Chief Operating Officer and Director
- ----------------------- (principal operating officer)
Douglas A. Pertz
* Senior Vice President and Chief Financial Officer
- ----------------------- (principal financial officer)
J. Bradford James
* Vice President and Controller
- ----------------------- (principal accounting officer)
Anne M. Scavone
* Director
- -----------------------
Raymond F. Bentele
* Director
- -----------------------
Wendell F. Bueche
* Director
- -----------------------
Rod F. Dammeyer
* Director
- -----------------------
James M. Davidson
II-5
<PAGE>
* Director
- -----------------------
Harold H. MacKay
* Director
- -----------------------
David B. Mathis
* Director
- -----------------------
Donald F. Mazankowski
* Director
- -----------------------
Joseph P. Sullivan
* Director
- -----------------------
Richard L. Thomas
* Director
- -----------------------
Billie B. Turner
/s/ ROSE MARIE WILLIAMS
- -----------------------
*By Rose Marie Williams, Attorney-in-fact
</TABLE>
THE PLAN. Pursuant to the requirements of the Securities Act, the
trustees (or other persons who administer the Plan) have duly caused this
registration statement to be signed on their respective behalf by the
undersigned, thereunto duly authorized, in the City of Northbrook, State of
Illinois, this 31st day of December, 1998.
SALARY REDUCTION PLAN FOR
HOURLY EMPLOYEES OF IMC-AGRICO, INC.
REPRESENTED BY LOCAL #826
INTERNATIONAL CHEMICAL WORKERS UNION
By: /s/ J. BRADFORD JAMES
-----------------------------------------
J. Bradford James
Member of the Benefits Committee
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation, as amended (incorporated
by reference to Exhibit 3.1 to the Company's Current Report on
Form 8-K dated October 21, 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 Annual 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
(Commission File No. 1-09759) 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 to the Company's Post-Effective Amendment No. 1 on
Form S-B to Form S-4 (Registration No. 333-0439) dated March 1,
1996)
4.5 By-laws of the Company (incorporated by reference to Exhibit 4.5
to the Company's Registration Statement on Form S-4 (Registration
No. 333-40377) 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 (Commission File No. 1-09759)
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 (Commission File No. 1-09759)
dated September 7, 1995)
4.9* Salary Reduction Plan for Hourly Employees of IMC-Agrico, Inc.
Represented by Local #826 International Chemical Workers Union
23.1* Consent of Ernst & Young LLP
23.2* Consent of PricewaterhouseCoopers LLP
23.3* Consent of Arthur Andersen, Chartered Accounts
23.4* Consent of Arthur Andersen, LLP
24* Form of Power of Attorney
</TABLE>
- ------------------------------------
*Filed herewith.
II-7
<PAGE>
EXHIBIT 4.9
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES
OF IMC-AGRICO, INC.
REPRESENTED BY LOCAL #826
INTERNATIONAL CHEMICAL WORKERS UNION
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1996)
<PAGE>
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES
OF IMC-AGRICO MP, INC.
REPRESENTED BY LOCAL #826
INTERNATIONAL CHEMICAL WORKERS UNION
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 . . . . . . . . . . . . . . . . . . . . . . . .7
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. . . . . . . . . . . . . . . . . . . . . . . .9
Section 4.6. ACTUAL DEFERRAL PERCENTAGE. . . . . . . . . . . . . . . . . . . . . 11
Section 4.7. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.8. SPECIAL RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.9. DISTRIBUTION OF EXCESS DEFERRALS. . . . . . . . . . . . . . . . . . 13
Section 4.10. DISTRIBUTION OF EXCESS CONTRIBUTIONS. . . . . . . . . . . . . . . . 14
ARTICLE 5 EMPLOYER CONTRIBUTIONS
Section 5.1. AMOUNT OF CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.2. STATUTORY LIMITATIONS ON CONTRIBUTIONS. . . . . . . . . . . . . . . 15
Section 5.3. LIMITATION YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 6 TRUST AND INVESTMENT PROVISIONS
Section 6.1. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.2. INVESTMENT OF CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . 18
Section 6.3. LIMITATIONS ON INVESTMENT DIRECTIONS. . . . . . . . . . . . . . . . 19
Section 6.4. CHANGE IN INVESTMENT DIRECTION. . . . . . . . . . . . . . . . . . . 20
Section 6.5. INVESTMENT INCOME . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.6. EXPENSES OF FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Article Section Page
- ------- ------- ----
<S> <C>
Section 6.7. INVESTMENT MANAGER. . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.8. ERISA SECTION 404(C) PLAN . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 7 PARTICIPANTS' PLAN ACCOUNTS
Section 7.1. PLAN ACCOUNTS AND VESTING . . . . . . . . . . . . . . . . . . . . . 22
Section 7.2. UNITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.3. VALUATION OF FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.4. VALUATION OF FUND SUB-ACCOUNTS AS OF A VALUATION DATE . . . . . . . 24
Section 7.5. VALUE OF PLAN ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.6. COMMITTEE TO FURNISH ANNUAL STATEMENTS OF VALUE OF PLAN ACCOUNTS. . 25
Section 7.7. TRANSFERS FROM OTHER SAVINGS AND PROFIT SHARING PLANS . . . . . . . 25
ARTICLE 8 WITHDRAWALS, DISTRIBUTION AND LOANS
Section 8.1. HARDSHIP WITHDRAWAL FROM SALARY REDUCTION ACCOUNTS. . . . . . . . . 27
Section 8.2. OTHER WITHDRAWALS FROM SALARY REDUCTION ACCOUNT . . . . . . . . . . 28
Section 8.3. LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.4. DISTRIBUTION UPON TERMINATION OF EMPLOYMENT . . . . . . . . . . . . 32
Section 8.5. TIME AND MANNER OF DISTRIBUTIONS. . . . . . . . . . . . . . . . . . 32
Section 8.6. DESIGNATION OF BENEFICIARY. . . . . . . . . . . . . . . . . . . . . 33
Section 8.7. DISTRIBUTION TO MINOR AND DISABLED DISTRIBUTEES . . . . . . . . . . 34
Section 8.8. DEFERRAL OF DISTRIBUTION UPON TERMINATION OF EMPLOYMENT. . . . . . 35
Section 8.9. CONDITIONS FOR DISTRIBUTIONS TO BENEFICIARY, UPON DEATH OF A
PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.10. DIRECT ROLLOVERS. . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 9 SPECIAL RULES RELATING TO RE-EMPLOYMENT OF TERMINATED EMPLOYEES AND
EMPLOYMENT BY RELATED ENTITIES . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 10 ADMINISTRATION
Section 10.1. THE COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 10.2. PLAN ADMINISTRATOR. . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 10.3. CLAIMS PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 10.4. NOTICES TO PARTICIPANTS AND DISTRIBUTEES. . . . . . . . . . . . . . 43
Section 10.5. NOTICES TO COMMITTEE OR EMPLOYERS . . . . . . . . . . . . . . . . . 44
Section 10.6. RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 10.7. REPORTS OF TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 11 PARTICIPATION BY OTHER EMPLOYERS
Section 11.1. ADOPTION OF PLAN. . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.2. WITHDRAWAL FROM PLAN. . . . . . . . . . . . . . . . . . . . . . . . 45
Section 11.3. COMPANY AS AGENT FOR EMPLOYERS. . . . . . . . . . . . . . . . . . . 45
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Article Section Page
- ------- ------- ----
<S> <C>
ARTICLE 12 CONTINUANCE BY A SUCCESSOR . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 13 NON-ASSIGNABILITY EXCEPTIONS FOR DOMESTIC RELATIONS
ORDERS AND LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 13.1. DOMESTIC RELATIONS ORDERS . . . . . . . . . . . . . . . . . . . . . 46
Section 13.2. LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 14 MISCELLANEOUS
Section 14.1. EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 14.2. NON-ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 14.3. EMPLOYMENT NON-CONTRACTUAL. . . . . . . . . . . . . . . . . . . . . 48
Section 14.4. LIMITATION OF RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . 48
Section 14.5. MERGER OR CONSOLIDATION WITH ANOTHER PLAN . . . . . . . . . . . . . 48
Section 14.6. REVERSION OF EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . 48
ARTICLE 15 AMENDMENT, WITHDRAWAL AND TERMINATION
Section 15.1. AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 15.2. WITHDRAWAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 15.3. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 15.4. TRUST TO BE APPLIED EXCLUSIVELY FOR PARTICIPANTS AND THEIR
BENEFICIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 15.5. DISTRIBUTION UPON SALE OF ASSETS. . . . . . . . . . . . . . . . . . 50
Section 15.6. DISTRIBUTIONS UPON SALE OF SUBSIDIARY . . . . . . . . . . . . . . . 51
</TABLE>
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<PAGE>
SALARY REDUCTION PLAN FOR HOURLY EMPLOYEES
OF IMC-AGRICO MP, INC.
REPRESENTED BY LOCAL #826
INTERNATIONAL CHEMICAL WORKERS UNION
---------------------
The Salary Reduction Plan for Hourly Employees of IMC-Agrico MP,
Inc. Represented by Local #826 International Chemical Workers Union (the
"Plan"), was adopted effective January 1, 1990 and subsequently amended and
restated effective January 1, 1993.
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-Agrico MP, Inc. Represented by Local #826 International
Chemical Workers Union."
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.
(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).
<PAGE>
(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 by the Board of Directors
of the Company pursuant to Section 10.1.
(8) COMPANY. IMC-Agrico MP, Inc., a Delaware corporation, and any
organization which shall succeed to the business of such
corporation and adopt the Plan pursuant to Article 12.
(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 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.
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<PAGE>
(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.
(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 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) ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
(17) FAMILY MEMBER. An individual described in Section 414(q)(6)(B)
of the Code.
(18) HIGHLY COMPENSATED EMPLOYEE. Effective January 1, 1997, a
Participant or former Participant who is a highly compensated
employee as defined in Code
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<PAGE>
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.
(19) INVESTMENT MANAGER. The investment manager who may be
appointed pursuant to Section 6.6.
(20) 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.
(21) NON-HIGHLY COMPENSATED EMPLOYEE. An Employee of an Employer
who is not a Highly Compensated Employee.
(22) 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.
(23) 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 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, (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.
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<PAGE>
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 or create a Break in 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.
(24) PLAN. The plan herein set forth, as from time to time amended.
(25) PLAN ACCOUNTS. The sum of a Participant's Salary Reduction
Account and Rollover Account.
(26) PLAN YEAR. The Plan Year shall mean the calendar year.
(27) 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.
(28) 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 the
Periods of Employment by an Employer. Any Break in Service of
less than twelve months duration shall be included in an
Employee's Service.
(29) TRUST. The trust created by agreement between the Company and
the Trustee, as from time to time amended.
(30) 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.
(31) TRUST FUND. All money and property of every kind held by the
Trustee under the Trust.
(32) UNION. Local #826 of the International Chemical Workers Union
at the Port Sutton facility of IMC-Agrico MP, Inc.
(33) VALUATION DATE. The last day of each calendar month.
Effective April 1, 1996, the Valuation Date shall be each
business day.
(34) VOICE RESPONSE SYSTEM. The Marshall & Ilsley Mi Retirement
Line automated voice response system.
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<PAGE>
ARTICLE 3
PARTICIPATION
SECTION 3.1. ELIGIBILITY REQUIREMENTS.
(a) ACTIVE PARTICIPANTS. A person who:
(i) is an Employee of an Employer at the Port Sutton facility;
(ii) is paid on an hourly basis;
(iii) falls within the jurisdiction of the Union;
(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 articipation 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
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 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.
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<PAGE>
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.
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
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<PAGE>
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 $150.00 per week . Such
contributions will be made weekly at the close of each 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.
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 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 4.9 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
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<PAGE>
by the Uniformed Service 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 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 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
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<PAGE>
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 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
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<PAGE>
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. 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 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
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<PAGE>
by more than two (2) percentage points, or such lesser amount as the
Secretary of the Treasury shall prescribe to prevent the multiple use of this
alternative limitation with respect to any Highly Compensated Employee.
SECTION 4.7. 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.
SECTION 4.8. 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
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<PAGE>
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 4.9. 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.
(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.
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<PAGE>
SECTION 4.10. 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.
(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 4.10 shall first be treated as distributions from the
Participant's Salary Reduction Account.
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ARTICLE 5
EMPLOYER CONTRIBUTIONS
SECTION 5.1. AMOUNT OF CONTRIBUTIONS.
(a) Subject to the limitations set forth in Section 5.2, each
Employer shall contribute for and on account of each weekly period of each
calendar year of such Employer the amount by which such Active Participant
elected pursuant to Section 4.1(a). Notwithstanding the foregoing,
contributions by an Employer shall be delivered to the Trustee no later than
10 days after each weekly pay period.
(b) 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:
(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
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(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 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.
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(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 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,
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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 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 be invested by the Trustee
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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 Fixed Income Fund under which the funds shall be entrusted
to one or more insurance companies or banks, and/or to a portfolio of
guaranteed insurance contracts or other capital preservation investments of
different maturities and interest rates in which a group of retirement or
savings plans may participate, to be chosen at the sole discretion of the
Committee, which companies and/or banks, as applicable, pursuant to a
contract or contracts or other arrangement to be approved by the Committee,
will invest the funds according to its sole discretion at fixed or floating
rate of interest on the invested funds.
(c) 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.
(d) A Growth Equity Fund to be invested at the discretion of the
Committee in a mutual fund or funds and other investment vehicles 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, (d) 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.
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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.
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 Fixed Income
Fund, the Balanced Fund and the Growth Equity 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:
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(a) The Company shall have the right, at any time, with or
without cause, to remove the Investment Manager. The Investment Manager may
resign and such resignation shall be effective upon delivery of a written
resignation to the Company. Upon the resignation, removal or failure or
inability for any reason of the Investment Manager to act hereunder, the
Company may appoint a successor. All successor Investment Managers shall
have all of the rights and privileges and all of the duties of their
predecessors, but shall not be held accountable for the acts of their
predecessors.
(b) 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 Fixed Income Fund, the Balanced Fund or the
Growth Equity Fund, the
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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.
ARTICLE 7
PARTICIPANTS' PLAN ACCOUNTS
SECTION 7.1. PLAN ACCOUNTS AND VESTING. Effective January 1,
1990, 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, for each Participant the following accounts:
(i) 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.
(ii) 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 Fixed Income Fund Sub-Account, a Balanced Fund Sub-Account and a
Growth Equity Fund Sub-
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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.
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 the Salary Reduction Account
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 by such Participant by means of payroll
deductions 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
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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.
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. 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 not
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).
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SECTION 7.6. COMMITTEE TO FURNISH ANNUAL STATEMENTS OF VALUE OF
PLAN ACCOUNTS. The Committee shall, not less frequently than quarterly,
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 hourly
or salaried employees of the Company (the "Other Plan") ceases pursuant to
the terms of the Other Plan to be an eligible employees, 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 the Participant's interests in such 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 Other 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 account to be
credited in accordance with the investment direction made by the
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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 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 an Other Plan, then his interest hereunder
shall be transferred
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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,
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 trustee and which represents Salary Reduction Contributions,
if any, to this Plan.
ARTICLE 8
WITHDRAWALS, DISTRIBUTION AND LOANS
SECTION 8.1. 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 8.1 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:
(a) Medical expenses of the Participant, the Participant's
spouse, or dependents, or to obtain medical treatment of the Participant,
Participant's spouse or dependents,
(b) Expenses for the purchase (excluding mortgage payments) of
the principal residence of the Participant,
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(c) 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
(d) 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 (a) through (d) above of this Section 8.1.
Hardship withdrawals under this Section 8.1(a) through (d) 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
8.1 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(a), 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-Agrico MP, 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. 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.
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(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 Plan 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 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 weekly (as applicable) 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.
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(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 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
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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 8.3 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 8.4. DISTRIBUTION UPON TERMINATION OF EMPLOYMENT.
Whenever a Participant terminates his employment with his Employer or its
Affiliate, then the Participant, or, in 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 8.5. 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 8.4, 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 8.4 because the
Participant cannot be located, the undistributed balance of such
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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 8.6. DESIGNATION OF BENEFICIARY.
(a) The Beneficiary of a Participant who is married shall be his
spouse. Should a Participant who is married desire to elect a Beneficiary
other than his spouse, he may do so only in the form prescribed by the
Administrator, which shall require the written consent of such spouse to the
Participant's election of another Beneficiary. To be effective, such written
consent must be notarized or witnessed by the Administrator or his designee.
(b) If a Participant is not married or if the Participant proves
to the satisfaction of the Administrator that his spouse cannot be located,
then the Participant shall have the right to designate any Beneficiary or
Beneficiaries.
(c) The Beneficiary of a Participant shall receive any
distribution upon the death of the Participant or, in accordance with Section
8.5, 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
8.8, if applicable.
A Participant described in Paragraph (b) of this Section 8.6 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 8.6 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.
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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 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 8.6 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 8.7. 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
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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 8.8. 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 8.8 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 Accounts shall then be valued
according to the terms of Section 7.4. Prior to December 31, 1996, if a
Participant has not notified the Administrator by sixty days prior to his
70th birthday, his Plan Accounts 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 8.8 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
8.8(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
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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. Any Participant who makes a deferral election under
this Section 8.8(a) 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
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prior to total distribution. The Participant shall elect that his
Beneficiary, designated pursuant to Section 8.5, 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,
except to the extent that the Participant has elected to defer the distribution
pursuant to this Section 8.8.
(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
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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 8.9. CONDITIONS FOR DISTRIBUTIONS TO BENEFICIARY, UPON DEATH
OF A PARTICIPANT.
(a) Notwithstanding subsections (c) and (d) of Section 8.8 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.
(b) Notwithstanding Section 8.8 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 8.10. 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.
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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 8.4 or 8.8 is reemployed prior to receipt of his
deferred distribution pursuant to Section 8.8 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.
ARTICLE 10
ADMINISTRATION
SECTION 10.1. THE COMMITTEE.
(a) The Board of Directors of the Company shall appoint a
Committee consisting of certain members responsible (except for duties
specifically vested in the Trustee and the Investment Manager) for the
administration of the provisions of the Plan. The Company and the Committee
shall be "named fiduciaries" within the meaning of such term as used in
ERISA. The Board of Directors of the Company shall have the right at any
time, with or without cause, to remove any member of the Committee. A member
of the Committee may resign and his resignation shall be effective upon
delivery of his written resignation to the Company. Upon the resignation,
removal or failure or inability for any reason of any member of the Committee
to act hereunder, the Board of Directors of the Company may appoint a
successor member. All successor members of the Committee shall have all the
rights, privileges and duties of their predecessors, but shall not be held
accountable for the acts of their predecessors.
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(b) Any member of the Committee may, but need not, be an
employee or director, officer or shareholder of any of the Employers, and
such status shall not disqualify him from taking any action hereunder or
render him accountable for any distribution or other material advantage
received by him under the Plan, provided that no member of the Committee who
is a Participant shall take part in any action of the Committee or any matter
involving solely his rights under the Plan.
(c) The Committee shall have the duty and authority to interpret
and construe the Plan in regard to all questions of eligibility and the
status and rights of Participants, Distributees and other persons under the
Plan. Each Employer shall, from time to time, upon request of the Committee,
furnish 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
such contributions to the Trustee from time to time. Notwithstanding any
other provision of the Plan to the contrary the Committee has the right to
lower the Salary Reduction Contributions (on a prospective basis) of any
Participant who is a Highly Compensated Employee at any time during the Plan
Year where the Committee deems such action to be necessary to insure that the
Plan complies with the rules set forth in Sections 4.6(a) and 4.10(b)(i) and
(ii).
(e) The members of the Committee may allocate their
responsibilities among themselves and may designate any person, partnership
or corporation to carry out any of their responsibilities. Any such
allocation or designation should be reduced to writing and such writing shall
be kept with the records of the meetings of the Committee.
(f) The Committee may act at a meeting, or by writing without a
meeting, by the vote or written assent of a majority of its members. The
Committee may select a chairman and shall keep the Trustee advised of the
identity of the member holding such office. The Committee shall
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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 familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims. The Company shall indemnify the members
of the Committee, and each of them, from the effects and consequences of
their acts, omissions and conduct in their official capacity as members of
the Committee. Such indemnification shall extend to any action, suit or
proceeding to which the members shall be made or threatened to be made a
party, whether civil, criminal, administrative or investigative, and whether
or not terminated by judgment, settlement, conviction or upon a plea of NOLO
CONTENDERE or its equivalent; PROVIDED, HOWEVER, such indemnification shall
not extend to any action, suit, or proceeding in which it shall be finally
adjudicated that (1) a member did not act in good faith, and (2) with respect
to any criminal action or proceeding, the member did not have reasonable
cause to believe his conduct was lawful.
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(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 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
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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 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.
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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
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.
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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 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
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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 Alternate Payee may agree in writing to an earlier distribution
and distribution is made pursuant to such written agreement.
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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 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,
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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 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
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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 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.
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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.
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
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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-Agrico MP, Inc. has caused its corporate
seal to be hereunto affixed by its officers thereunto duly authorized this
11th day of SEPT, 1997.
IMC-AGRICO MP, INC.
By: /s/ Marschall I. Smith
-------------------------------------
Marschall I. Smith
Vice President and Assistant Secretary
(Corporate Seal)
ATTEST:
/s/ Rose Marie Williams
- ------------------------------------
Rose Marie Williams
Secretary
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Salary Reduction Plan for Hourly Employees of
IMC-Agrico, Inc. Represented by Local #826 International Chemical Workers
Union of our report dated January 26, 1998, except for Note 24, as to which
the date is December 15, 1998, with respect to the consolidated financial
statements of IMC Global Inc. for the year ended December 31, 1997, included
in its Current Report on Form 8-K dated December 31, 1998, filed with the
Securities and Exchange Commission.
Chicago, Illinois /s/ ERNST & YOUNG LLP
December 31, 1998 -------------------------------
Ernst & Young LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of IMC Global Inc., a Delaware corporation (the "Company"), on Form S-8
relating to the registration of 20,000 shares of the Company's Common Stock,
$1.00 par value per share, for issuance under the Salary Reduction Plan for
Hourly Employees of IMC-Agrico, Inc. Represented by Local #826 International
Chemical Workers Union, of our report dated August 14, 1997, on our audits of
the consolidated financial statements of Harris Chemical Group, Inc. as of
March 29, 1997 and March 30, 1996, and for the years ended March 29, 1997,
March 30, 1996, and March 25, 1995, which report is included in IMC Global
Inc.'s Form 8-K/A which was filed with the Securities and Exchange Commission
on June 15, 1998.
We also consent to the incorporation by reference in this registration
statement of the Company on Form S-8 relating to the registration of 20,000
shares of the Company's common stock, $1.00 par value per share, for issuance
under the Salary Reduction Plan for Hourly Employees of IMC-Agrico, Inc.
Represented by Local #826 International Chemical Workers Union, of our report
dated September 8, 1998, on our audits of the consolidated financial
statements of Harris Chemical Group, Inc. as of March 28, 1998 and March 29,
1997, and for the years ended March 28, 1998, March 29, 1997 and March 30,
1996, which report is included in the Company's Form 8-K/A which was filed
with the Securities and Exchange Commission on September 16, 1998.
Kansas City, Missouri /s/ PRICEWATERHOUSECOOPERS LLP
December 29, 1998 ------------------------------------
PricewaterhouseCoopers LLP
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Registration Statement on Form
S-8 being filed by IMC Global Inc., a Delaware corporation (the "Company")
relating to the registration of 20,000 shares of the Company's Common Stock,
$1.00 par value per share, for issuance under the Salary Reduction Plan for
Hourly Employees of IMC-Agrico, Inc. Represented by Local #826 International
Chemical Workers Union, of our report dated 18 September 1997, on our audits of
the financial statements of Harris Chemical Australia Pty Ltd. & Its Controlled
Entities for the year ended 30 June 1997, which report is included in the
Company's Current Report on Form 8-K/A which was filed with the Securities and
Exchange Commission on June 15, 1998.
Arthur Andersen /s/ ARTHUR ANDERSEN
Chartered Accountants -----------------------------
Adelaide, South Australia Arthur Andersen
December 30, 1998
<PAGE>
EXHIBIT 23.4
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 relating to the issuance
of 20,000 shares of Common Stock, $1.00 par value per share, by IMC Global
Inc., a Delaware corporation (the "Company"), under the Salary Reduction Plan
of Hourly Employees of IMC-Agrico, Inc. Represented by Local #826
International Chemical Workers Union, of our report dated January 21, 1997
incorporated by reference in Freeport-McMoRan Inc.'s Annual Report on Form
10-K for the year ended December 31, 1996 and to all references to our Firm
included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
New Orleans, Louisiana ---------------------------
December 30, 1998 Arthur Andersen LLP
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints
J. Bradford James 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, a Registration Statement 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 the Salary
Reduction Plan for Hourly Employees of IMC-Agrico, Inc. Represented by Local
#826 International Chemical Workers Union (the "Registration Statement"), and
to execute and deliver any and all amendments to such Registration Statement
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 15th day of December, 1998.
____________________________
[Name]
