EXHIBIT 10.6
CENEX HARVEST STATES
SUPPLEMENTAL SAVINGS PLAN
ARTICLE I.
INTRODUCTION
Section 1.1. Amendment and Restatement. Cenex Harvest States
Cooperatives hereby amends, merges, and restates the CENEX Supplemental Thrift
Plan and the Harvest States Deferred Compensation Plan, effective January 1,
1999.
Section 1.2. Purpose. The purpose of the Cenex Harvest States
Supplemental Savings Plan is to provide future compensation for certain of its
employees who are part of a select group of management or highly compensated
employees through voluntary deferrals of compensation, so that such employees
may be retained and their productive effort encouraged.
ARTICLE II.
DEFINITIONS
Section 2.1. Definitions. When used in this Plan document, the
following terms have the meanings indicated unless a different meaning is
plainly required by the context.
"Account" means an account established for a Participant under Section
4.1 of the Plan.
"Active Participant" means a Participant in the Plan who is identified
as an Active Participant under Article III of the Plan.
"Beneficiary" means the person or persons selected by the Participant,
pursuant to the Participant's Deferred Compensation Agreement, to receive the
benefits provided under this Plan in the event of the Participant's death.
"Board of Directors" means the Board of Directors of Cenex Harvest
States.
"Cenex Harvest States" means Cenex Harvest States Cooperatives and any
of its subsidiaries or affiliated business entities which are treated as one
employer with that corporation under the provisions contained in Section 414 of
the Code.
"Committee" means the committee described in Section 7.4 of the Plan.
"Code" means the Internal Revenue Code of 1986, as amended.
"Deferred Compensation Agreement" or "Deferred Compensation Agreements"
means the individual agreement or agreements executed prior to the execution of
this document by and between the Participants and Cenex Harvest States which
describe the benefits available under this Plan and which are incorporated into
the Plan by this reference, and any agreements executed subsequent to the
execution of this document by and between the Participants and Cenex Harvest
States which shall be in a form substantially similar to the form attached
hereto as Exhibit A and which shall be incorporated into the Plan by this
reference.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Participant" means a person who is an Active Participant or is or may
become entitled to an immediate or deferred benefit under the Plan by reason of
having been an Active Participant.
"Plan" means the Cenex Harvest States Supplemental Savings Plan,
including any amendments thereto, which is operated and maintained by Cenex
Harvest States primarily for the purpose of providing deferred compensation for
a select group of management or highly compensated employees. Prior to January
1, 1999, "Plan" refers to the two plans which have been merged in this document,
referred to as the CENEX Supplemental Thrift Plan and the Harvest States
Deferred Compensation Plan.
"Plan Year" means the calendar year.
"President" means the President and General Manager of Cenex Harvest
States.
Section 2.2. Performance of Obligations. Cenex Harvest States agrees to
perform its obligations in accordance with the Plan.
Section 2.3. Gender and Number. The singular form of any word will
include the plural and the masculine gender will include the feminine wherever
necessary for the proper interpretation of this Plan.
ARTICLE III.
PARTICIPATION
Section 3.1. Eligibility and Participation. Any individual who was a
Participant in the Plan on December 31, 1998, shall continue to be a Participant
until the Plan causes the individual to cease to be a Participant. The President
or an Executive Vice President of Cenex Harvest States shall select the
executives of Cenex Harvest States who will become Active Participants in the
Plan as of January 1, 1999, or on a subsequent date, and will designate the date
on which such an executive will become an Active Participant in the Plan. The
President or such an Executive Vice President may withhold participation for any
reason with respect to any executive of Cenex Harvest States.
Section 3.2. Status as Active Participant. The President may by written
statement and notice to an executive who is an Active Participant cause such
Participant to cease to accrue benefits under the Plan prior to the
Participant's termination of employment with Cenex Harvest States. If the
President takes that action with respect to such a Participant, there shall be
no further accrual of benefits under this Plan on behalf of such Participant and
the Participant's benefits under this Plan shall thereafter be computed as if
the Plan terminated on the date of such written notice to the Participant.
Section 3.3. Status as Participant. A person who becomes a Participant
will remain a Participant in the Plan until all benefits payable to such person
under the Plan have been distributed.
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ARTICLE IV.
DEFERRED COMPENSATION AND ACCOUNTS
Section 4.1. Account. Cenex Harvest States shall establish and maintain
an Account for each Participant, or the designated Beneficiary of such
Participant upon the death of the Participant, and shall credit such Account
with amounts described in (a) Section 4.2 of this Plan deferred by the
Participant pursuant to the terms of the Plan and the Participant's Deferred
Compensation Agreement and (b) the other provisions of this Article.
Section 4.2. Election of Deferred Compensation. Prior to the first day
of any Plan Year beginning on or after January 1, 1999, a Participant may elect
to have an amount of deferred compensation credited to the Participant's Account
for the Plan Year. The compensation actually earned during the Plan Year by a
Participant who elects deferred compensation under this section shall be reduced
by the percentage or amount so elected.
(a) Elections for a Plan Year must be in writing on forms provided by
Cenex Harvest States and must be filed with the Vice President of Human
Resources of Cenex Harvest States at least thirty (30) days before the beginning
of the Plan Year to which the election applies.
(b) A Participant may elect to have either or both of the following
types of deferrals made from the Participant's compensation:
(1) The Participant may elect to contribute a percentage of
each payment of base compensation. The percentage may not exceed 30%,
and must be expected to result in annual contributions totaling at
least $1000.
(2) The Participant may elect to contribute either a
percentage or a specific dollar amount (not less than $1000) of any
bonus or similar incentive payment which may become payable during the
Plan Year. If a specific dollar amount is elected and that amount
exceeds the amount of bonuses payable on or prior to a particular date
during the year, 100% of the bonus will be contributed under this Plan.
If a percentage is elected, the contribution will not be less than the
smaller of $1000 or 100% of the bonus payable.
(c) A Participant may elect to change the amount to be contributed, or
discontinue contributions, in a future Plan Year by filing an approved form with
such Vice President of Cenex Harvest States at least thirty (30) days before the
beginning of the Plan Year to which the election applies. If no such election is
filed, the election in effect during the previous Plan Year will continue in
effect during the next Plan Year. Each election for a Plan Year shall become
irrevocable on the deadline for filing elections for that year.
Section 4.3. Allocation to Accounts. The deferred compensation credited
under the Plan by Cenex Harvest States on behalf of a Participant for a Plan
Year shall be allocated to the Account of the Participant as of the date that
the compensation would otherwise have been paid to the Participant in cash.
Section 4.4. Valuation of Accounts. As of any date as of which an
Account is to be valued, the value of the Account shall be adjusted to reflect
the effect of additional credits under Section 4.2 and any credit for income
with respect to that Account, less any distributions under
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the Plan with respect to said Account, since the last date the value of the
Account was determined. The minimum income rate to be credited to each Account
each Plan Year shall be an annual rate equal to the investment percentage which
is used under the Cenex Harvest States Pension Plan to determine investment
credits for such Plan Year. The dates for determining the value of the Accounts
shall be determined by the President except that the last day of the Plan Year
shall always be such a valuation date.
ARTICLE V.
DISTRIBUTIONS
Section 5.1. Distributions under the Plan shall be made in accordance
with the terms and conditions contained in the Deferred Compensation Agreements
and shall be made in the form of cash. However, notwithstanding the terms of
such an agreement, a Participant may change the form of payment and benefit
commencement date by electing another option available under an election form
provided by Cenex Harvest States pursuant to the agreement, but such change or
changes in the form of payment or the benefit commencement date will not be
effective until the calendar year following the calendar year in which the
change or changes were elected. However, no change in the form of payment or in
the benefit commencement date will be effective with respect to any Participant
after the first day of the calendar year in which the Participant incurs a
distributable event (an event on account of which distribution will be made),
other than death or disability. Further, no change may be made after any
distributable event.
Section 5.2. The total amount to which a Participant is entitled shall
be paid to the Participant or, in the event of the Participant's death, to the
Participant's designated Beneficiary in accordance with the terms of the
Participant's Deferred Compensation Agreement.
Section 5.3. Anything herein to the contrary notwithstanding, if, at
any time, a court or the Internal Revenue Service determines that an amount
credited to a Participant's account is includable in the gross income of the
Participant and subject to tax, the Board of Directors may, in its sole
discretion, permit a lump-sum distribution in the form of cash of an amount
equal to the amount determined to be includable in the Participant's gross
income.
ARTICLE VI.
ADMINISTRATION OF THE PLAN
Section 6.1. Interpretation. The Plan will be administered by Cenex
Harvest States, which will have the authority, duty and power to interpret and
construe the provisions of the Plan as it deems appropriate. Cenex Harvest
States will have the duty and responsibility of maintaining records, making the
requisite calculations and dispersing the payments hereunder. Cenex Harvest
States' interpretations, determinations, regulations and calculations will be
final and binding on all persons and parties concerned.
Section 6.2. General Administration and Claims Procedure. Cenex Harvest
States will be responsible for the general operation and administration of the
Plan and for carrying out the provisions thereof. Cenex Harvest States will have
the authority to establish and revise rules, procedures, and regulations
relating to the Plan and to make any other determinations which it
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believes necessary or advisable for the administration of the Plan. Cenex
Harvest States will be responsible for the expenses incurred in the
administration of the Plan. Cenex Harvest States will also be responsible for
determining eligibility for benefits and the benefits payable pursuant to the
Plan. Cenex Harvest States will be entitled to rely conclusively upon all
tables, valuations, certificates, opinions and reports furnished by any actuary,
accountant, controller, counsel or other person employed or engaged by Cenex
Harvest States with respect to the Plan. The procedures for filing claims for
Plan benefits are described below. For claims procedures purposes, the "Claims
Manager" will be Cenex Harvest States.
(a) Initial Claim. An initial claim for benefits under the Plan must be
made by the Participant or his or her Beneficiary in accordance with the terms
of the Plan. If for any reason a claim for benefits under this Plan is denied by
the Claims Manager, the Claims Manager will deliver to the claimant a written
explanation setting forth the specific reasons for the denial, pertinent
references to the section under the Plan on which the denial is based, such
other data as may be pertinent and information on the procedures to be followed
by the claimant in obtaining a review of his or her claim, all written in a
manner calculated to be understood by the claimant. For this purpose:
(1) The claimant's claim will be deemed to be filed when
presented orally or in writing to the Claims Manager.
(2) The Claims Manager's explanation will be in writing
delivered to the claimant within 90 days of the date the claim is
filed.
(b) Request for Review. The claimant will have 60 days following his or
her receipt of the denial of the claim to file with the Claims Manager a written
request for review of the denial. For such review, the claimant or the
claimant's representative may review pertinent documents and submit written
issues and comments.
(c) Decision after Review. The Claims Manager will decide the issue on
review and furnish the claimant with a copy within 60 days of receipt of the
claimant's request for review of the claimant's claim. The decision on review
will be in writing and will include specific reasons for the decision, written
in a manner calculated to be understood by the claimant, as well as specific
references to the pertinent provisions in the Plan on which the decision is
based. If a copy of the decision is not so furnished to the claimant within such
60 days, the claim will be deemed denied on review. In no event may a claimant
commence legal action for benefits the claimant believes are due the claimant
until the claimant has exhausted all of the remedies and procedures afforded the
claimant by this Article VI.
Section 6.3. Written Statement. Cenex Harvest States may provide
individual written statements of accrued benefits to each Participant, or
current Beneficiary, in a form determined by Cenex Harvest States at such times
as may be established by Cenex Harvest States.
Section 6.4. Committee. A Committee consisting of one (1) or more
members appointed by the President will act for Cenex Harvest States under the
Plan, unless the Plan specifically indicates that the Board of Directors or
other persons are to act for Cenex Harvest States with respect to a specified
matter under the Plan. If the President does not appoint anyone
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to the Committee or if all members resign or otherwise cease to be members of
the Committee, the President will act for Cenex Harvest States until the
President makes any appointments under this section.
Section 6.5. Records. The records of the Plan will be maintained on the
Plan Year.
ARTICLE VII.
AMENDMENT OR TERMINATION
Section 7.1. Amendment or Termination. Cenex Harvest States intends the
Plan to be permanent but reserves the right to amend or terminate the Plan at
any time. Any such amendment or termination will be made pursuant to a
resolution of Cenex Harvest States' Board of Directors and will be effective as
of the date provided in the resolution. An amendment will be stated in an
instrument in writing signed in the name of Cenex Harvest States by a person
authorized by the Board of Directors and all parties interested herein will be
bound thereby.
Section 7.2. Impact on Benefits. No amendment or termination of the
Plan will directly or indirectly reduce any benefit described in Article IV of
the Plan as of the effective date of such amendment or termination. A
Participant's benefit which has accrued under the Plan will not increase after
the termination of the Plan and will be determined under the appropriate
provisions of the Plan as if the Participant did not accumulate any additional
service after the effective date of such termination and did not have any
increase in compensation after that date. Upon the termination of the Plan,
distribution of benefits payable under the Plan will be made to the Participants
or their Beneficiaries in accordance with Article V of the Plan.
ARTICLE VIII.
GENERAL PROVISIONS
Section 8.1. Responsibility for Benefits and Expenses. Cenex Harvest
States will pay benefits arising under the Plan and all costs, charges and
expenses related thereto. Cenex Harvest States may anticipate its obligations
under this Plan by establishing a trust or purchasing any insurance or other
contract; provided, however, that such "funding" vehicle will not:
(a) change the status of this Plan as an unfunded plan, or
(b) change the rights of a Participant or the Participant's Beneficiary
under Section 8.3 of the Plan.
Section 8.2. Inalienability. The benefits payable hereunder or the
right to receive future benefits under the Plan may not be anticipated,
alienated, sold, transferred, assigned, pledged, encumbered, or subjected to any
charge or legal process; and no interest or right to receive a benefit may be
taken, either voluntarily or involuntarily, for the satisfaction of the debts
of, or other obligations or claims against, such person or entity, including
claims for alimony, support, separate maintenance and claims in bankruptcy
proceedings.
Section 8.3. Unsecured Claim. The right of a Participant or the
Participant's Beneficiary to receive a distribution hereunder will be an
unsecured claim against the general assets of Cenex Harvest States, and neither
a Participant nor his or her Beneficiary will have any
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rights in or against any amount credited to any accounts under the Plan or any
other assets of Cenex Harvest States. The Plan will at all times be considered
entirely unfunded both for tax purposes and for purposes of Title I of ERISA.
Funds invested hereunder will continue for all purposes to be part of the
general assets of Cenex Harvest States and available to the general creditors of
Cenex Harvest States in the event of Cenex Harvest States' bankruptcy (when
Cenex Harvest States is involved in a pending proceeding under the Federal
Bankruptcy Code) or insolvency (when Cenex Harvest States is unable to pay its
debts as they mature). No Participant or any other person will have any
interests in any particular assets of Cenex Harvest States by reason of the
right to receive a benefit under the Plan. The Plan constitutes a mere promise
by Cenex Harvest States to make payments to the Participants in the future.
Section 8.4. Sufficiency of Cenex Harvest States Assets. Nothing
contained in the Plan will be interpreted as a guaranty by Cenex Harvest States
or any other person or entity that any funds or assets of Cenex Harvest States
will be sufficient to pay any benefit hereunder.
Section 8.5. Plan Administered According to its Terms. No Participant
or Beneficiary will have any right to a benefit under this Plan except in
accordance with the terms of the Plan. Establishment of the Plan will not be
construed to give any Participant the right to be retained in the service of
Cenex Harvest States. The sole rights of a Participant or his or her Beneficiary
under the Plan will be to have the Plan administered according to its terms, and
to receive whatever benefits he or she may be entitled to hereunder.
Section 8.6. Incompetency. If any person entitled to a benefit payment
under the Plan is declared incompetent and a conservator or other person legally
charged with the care of such person or of his or her estate is appointed, any
benefits under the Plan to which the person is entitled will be paid to such
conservator or other person legally charged with the care of the person or his
or her estate. Except as provided above, when Cenex Harvest States determines
that such person is unable to manage his or her affairs, Cenex Harvest States
may provide for such payment or any part thereof to be made to any other person
or institution then contributing toward or providing for the care and
maintenance of such person. Any such payment will be a payment for the account
of such person and a complete discharge of any liability of Cenex Harvest States
and the Plan therefore.
Section 8.7. Impact of Corporate Change. The Plan will not be
automatically terminated by a transfer or sale of assets of Cenex Harvest States
or by the merger or consolidation of Cenex Harvest States into or with any other
corporation or other entity, but the Plan will be continued after such sale,
merger or consolidation only if and to the extent that the transferee, purchaser
or successor entity agrees to continue the Plan. In the event the Plan is not
continued by the transferee, purchaser or successor entity, then the Plan will
terminate subject to the provisions of Article VII of the Plan.
Section 8.8. Addresses. Each Participant will keep Cenex Harvest States
informed of his or her current address and the current address of his or her
designated Beneficiary. Cenex Harvest States will not be obligated to search for
any person. If the location of a Participant is not made known to Cenex Harvest
States within two (2) years after the date on which payment of the Participant's
benefits payable under this Plan may first be made, payment may be made as
though the Participant had died at the end of the two-year period. If, within
one additional year
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after such two-year period has elapsed, or, within two (2) years after the
actual death of a Participant, whichever is later, Cenex Harvest States is
unable to locate the designated Beneficiary of the Participant, then Cenex
Harvest States will have no further obligation to pay any benefit hereunder to
such Participant or designated Beneficiary and such benefits will be irrevocably
forfeited to Cenex Harvest States.
Section 8.9. Liability. Notwithstanding any of the preceding provisions
of the Plan, neither Cenex Harvest States nor any individual acting as an
employee or agent of Cenex Harvest States will be liable to any Participant,
former Participant, or any other person for any claim, loss, liability or
expense incurred in connection with the Plan, unless attributable to fraud or
willful misconduct on the part of Cenex Harvest States or any such employee or
agent of Cenex Harvest States.
Section 8.10. Availability of Copy of Plan. Cenex Harvest States will
make a copy of the Plan available for inspection by any Participant or
designated Beneficiary.
Section 8.11. Applicable Laws. All questions pertaining to the
construction, validity and effect of the Plan will be determined in accordance
with the laws of the United States and to the extent not preempted by such laws,
by the laws of the State of Minnesota.
Section 8.12. Invalidated Provision. Any provision of this Plan
prohibited by law will be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions of the Plan.
Executed this ______ day of ________________, 20__.
CENEX HARVEST STATES COOPERATIVES
By:
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Title:
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