EXHIBIT 4(d)
PAGE 1
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
ARTICLE I
GENERALRTICLE I
GENERAL
SEC. 1.1 NAME AND FORM OF PLANec. 1.1 Name and Form
of Plan. The name of the stock bonus plan set forth herein is
the "ADM Savings and Investment Plan for Hourly Employees". It
is sometimes herein referred to as the "Plan". Certain
provisions of the Plan as applicable to particular Participating
Locations are set forth in appendices to the Plan.
SEC. 1.2 PURPOSEec. 1.2 Purpose. The Plan has been
established to provide eligible employees of the Participating
Employers with a means to adopt a regular savings program, a
supplement to their retirement income, and an ownership interest
in the Company.
SEC. 1.3 EFFECTIVE DATEEC. 1.3 EFFECTIVE DATE. The
"Effective Date" of the Plan, the date as of which the Plan was
established, is January 1, 1989.
SEC. 1.4 COMPANYEC. 1.4 COMPANY. The "Company" is
Archer-Daniels-Midland Company, a Delaware corporation, and any
Successor Employer thereof.
SEC. 1.5 PARTICIPATING
EMPLOYERSec. 1.5 Participating Employers. The Company is a
Participating Employer in the Plan. With the consent of the
Company, any other employer may also become a Participating
Employer in the Plan effective as of the date specified by it in
its adoption of the Plan. Any Successor Employer to a
Participating Employer shall also be a Participating Employer in
the Plan. The Participating Employers are listed in Table 1
(which is attached hereto and made a part hereof).
SEC. 1.6 CONSTRUCTION AND APPLICABLE
LAWEC. 1.6 CONSTRUCTION AND APPLICABLE LAW. The Plan is
intended to meet the requirements for qualification under
section 401(a) of the Code and the requirements applicable to
qualified cash or deferred arrangements under section 401(k) of
the Code. The Plan is also intended to be in full compliance
with applicable requirements of ERISA. The Plan shall be
administered and construed consistent with said intent. It
shall also be construed and administered according to the laws
of the State of Illinois to the extent that such laws are not
preempted by the laws of the United States of America. All
controversies, disputes, and claims arising hereunder shall be
submitted to the United States District Court for the Southern
District of Illinois, except as otherwise provided in any trust
agreement entered into with a Trustee.
SEC. 1.7 BENEFITS DETERMINED UNDER PROVISIONS IN
EFFECT AT TERMINATION OF EMPLOYMENTEC. 1.7 BENEFITS DETERMINED
UNDER PROVISIONS IN EFFECT AT TERMINATION OF EMPLOYMENT. Except
as may be specifically provided herein to the contrary, benefits
under the Plan attributable to service prior to a Participant's
Termination of Employment shall be determined and paid in
accordance with the provisions of the Plan as in effect as of
the date the Termination of Employment occurred unless he or she
becomes an Active Participant after that date and such active
participation causes a contrary result under the provisions
hereof. However, the provisions of this document shall apply to
any such Participant to the extent necessary to maintain the
qualified status of the Plan under Code section 401(a) or to
comply with the requirements of ERISA.
SEC. 1.8 TRANSFERS TO AND FROM ADM SAVINGS AND
INVESTMENT PLANEC. 1.8 TRANSFERS TO AND FROM ADM SAVINGS AND
INVESTMENT PLAN. In any case where hourly paid employees of a
Participating Employer become eligible to participate in the ADM
Savings and Investment Plan (the "Salaried Plan"), the Company
may arrange for transfer of their Accounts under this Plan to
the comparable accounts under the Salaried Plan. Any amounts so
transferred shall be held and distributed under the terms of the
Salaried Plan. In any case where employees who participated in
the Salaried Plan become eligible to participate in this Plan,
the Company may arrange for transfer of their accounts under the
Salaried Plan, other than their Tax Credit Accounts, to the
comparable Accounts under this Plan. Any amounts so transferred
shall be held and distributed under the terms of this Plan. Tax
Credit Accounts under the Salaried Plan may not be transferred
to this Plan.
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ARTICLE II
MISCELLANEOUS DEFINITIONSRTICLE II
MISCELLANEOUS DEFINITIONS
SEC. 2.1 ACCOUNTEC. 2.1 ACCOUNT. "Account" means a
Participant's or Beneficiary's interest in the Fund of any of
the types described in Sec. 7.1.
SEC. 2.2 ACTIVE PARTICIPANTEC. 2.2 ACTIVE
PARTICIPANT. An employee is an "Active Participant" only while
he or she is both a Participant and a Qualified Employee.
SEC. 2.3 ADM STOCKEC. 2.3 ADM STOCK. "ADM Stock"
means common stock of the Company.
SEC. 2.4 AFFILIATEEC. 2.4 AFFILIATE. "Affiliate"
means any trade or business entity under Common Control with a
Participating Employer, or under Common Control with a
Predecessor Employer while it is such.
SEC. 2.5 BEFORE TAX CONTRIBUTIONSEC. 2.5 BEFORE TAX
CONTRIBUTIONS. "Before Tax Contributions" are amounts
contributed by a Participating Employer under Sec. 5.1 at the
direction of individual Participants.
SEC. 2.6 BENEFICIARYEC. 2.6 BENEFICIARY.
"Beneficiary" means the person or persons designated as such
pursuant to the provisions of Article VIII.
SEC. 2.7 BOARDEC. 2.7 BOARD. The "Board" is the
board of directors of the Company, and includes any executive
committee thereof authorized to act for said board of directors.
SEC. 2.8 CERTIFIED EARNINGSEC. 2.8 CERTIFIED
EARNINGS. "Certified Earnings" of a Participant from a
Participating Employer for a Plan Year means the amount
determined by the Participating Employer and reported to the
Company to be
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the total compensation paid to the Participant by the
Participating Employer during such Plan Year for service as an
Active Participant, subject to the following:
(a)Certified Earnings include bonuses and lump sum payments
made in lieu of pay increases, overtime pay, vacation
pay, holiday pay, and pay for jury duty.
(b)Sick pay or short term disability pay paid directly by a
Participating Employer shall be included in Certified
Earnings.
(c)Certified Earnings include Before Tax Contributions to
this Plan and any contributions made by salary reduction
to any other plan which meets the requirements of Code
sections 125 or 401(k), whether or not such
contributions are actually excludable from the
Participant's gross income for federal income tax
purposes. Certified Earnings do not include Matching
Contributions to this Plan.
(d)Allowances or reimbursements for expenses, severance
pay, payments or contributions to or for the benefit of
the employee under any other deferred compensation,
pension, profit sharing, insurance, or other employee
benefit plan, stock options, stock appreciation rights
or cash payments in lieu thereof, merchandise or service
discounts, non-cash employee awards, benefits in the
form of property or the use of property, earnings
payable in a form other than cash, or other similar
fringe benefits shall not be included in computing
Certified Earnings, except as provided in subsections
(b) and (c) or to the extent such amounts are required
to be included in determining the employee's regular
rate of pay under the Federal Fair Labor Standards Act
for purposes of computing overtime pay thereunder.
(e)Certified Earnings of a Participant for any Plan Year
shall not exceed $150,000, adjusted for each Plan Year
to take into account any cost of living increase
provided for that year in accordance with regulations
prescribed by the Secretary of the Treasury, subject to
the provisions of Sec. 2.12(b) in the case of certain
Family Members. The dollar increase in effect on
January 1 of any calendar year shall apply to Plan Years
beginning in that calendar year. If a Plan Year is
shorter than 12 months, the limit under this subsection
for that year shall be multiplied by a fraction, the
numerator of which is the number of months in the short
Plan Year and the denominator of which is 12.
SEC. 2.9 CODEEC. 2.9 CODE. "Code" means the
Internal Revenue Code of 1986 as from time to time amended.
SEC. 2.10 COMMON CONTROLEC. 2.10 COMMON CONTROL. A
trade or business entity (whether a corporation, partnership,
sole proprietorship or otherwise) is under "Common Control" with
another trade or business entity (i) if both entities are
corporations which are members of a controlled group of
corporations as
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defined in Code section 414(b), or (ii) if both entities are
trades or businesses (whether or not incorporated) which are
under common control as defined in Code section 414(c), or (iii)
if both entities are members of an affiliated service group as
defined in Code section 414(m), or (iv) if both entities are
required to be aggregated pursuant to regulations under Code
section 414(o). Service for all entities under Common Control
shall be treated as service for a single employer to the extent
required by the Code; provided, however, that an individual
shall not be a Qualified Employee by reason of this section. In
applying the first sentence of this section for purposes of
Article VI, the provisions of subsections (b) and (c) of section
414 of the Code are deemed to be modified as provided in Code
section 415(h).
SEC. 2.11 ERISAEC. 2.11 ERISA. "ERISA" means the
Employee Retirement Income Security Act of 1974 as from time to
time amended.
SEC. 2.12 FAMILY MEMBEREC. 2.12 FAMILY MEMBER.
"Family Member" means an individual described in Code section
414(q)(6) with respect to a Highly Compensated Employee who is a
more than 5-percent owner or is among the 10 Highly Compensated
Employees paid the greatest compensation. Family Members
include the Highly Compensated Employee, his or her spouse and
lineal ascendants or descendants, and the spouses of such lineal
ascendants or descendants. Legal adoptions shall be taken into
account and treated as blood relations for purposes of
determining lineal ascendants and descendants.
(a)An individual who qualifies as a Family Member on any
day of a Plan Year will be treated as a Family Member
for the entire Plan Year.
(b)For purposes of applying the dollar limit on Certified
Earnings under Sec. 2.8(e), any Participant who is the
spouse of a Highly Compensated Employee who is a more
than 5-percent owner or is among the 10 Highly
Compensated Employees paid the greatest compensation and
any of the lineal descendants of such a Highly
Compensated Employee who have not attained age 19 before
the end of the Plan Year shall not be treated as a
separate Participant, and any Certified Earnings of the
Family Member shall be treated as Certified Earnings of
the Highly Compensated Employee. If the dollar limit is
exceeded as a result of the preceding sentence, the
limit shall be prorated among the affected individuals
in proportion to each such individual's compensation
determined prior to the application of the preceding
sentence (except for purposes of determining the portion
of compensation up to the integration level if the Plan
provides for permitted disparity). The dollar limit
shall be applied separately to any other Family Member.
SEC. 2.13 FUNDEC. 2.13 FUND. "Fund" means the
aggregate of assets described in Sec. 11.1.
SEC. 2.14 FUNDING AGENCYEC. 2.14 FUNDING AGENCY.
"Funding Agency" is a trustee or trustees or an insurance
company appointed and acting from time to time in accordance
with the provisions of Sec. 11.2 for the purpose of holding,
investing, and disbursing all or a part of the Fund.
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SEC. 2.15 HIGHLY COMPENSATED EMPLOYEEEC. 2.15 HIGHLY
COMPENSATED EMPLOYEE. "Highly Compensated Employee" for any
Plan Year means an individual described as such in Code section
414(q).
(a) Unless otherwise provided in Code section 414(q),
each employee who meets one of the following
requirements is a "Highly Compensated Employee":
(1) The employee at any time during the
current or prior Plan Year was a more than 5-percent
owner as defined in Code section 414(q)(3).
(2) The employee received Compensation from
the employer in excess of $75,000 for the prior Plan
Year.
(3) The employee both received Compensation
from the employer in excess of $50,000 for the prior
Plan Year and was in the top 20 percent of employees
of the employer who performed services for the
employer in such prior Plan Year, when ranked on the
basis of Compensation paid during the Plan Year.
For purposes of determining the top 20 percent of
employees under Code section 414(q)(8), any
non-resident aliens who receive no earned income
from the employer which constitutes income from
sources within the United States shall be
disregarded.
(4) The employee was an officer of the
employer receiving Compensation in excess of $45,000
for the prior Plan Year. However, no more than the
lesser of (i) 50 employees or (ii) the greater of 3
employees or 10 percent of all employees of the
employer shall be treated as officers for purposes
of this paragraph. If for any Plan Year no officer
meets the requirements of this paragraph (4), then
the officer receiving the greatest Compensation in
the prior Plan Year shall be treated as a Highly
Compensated Employee.
(5) The employee would meet the requirements
of paragraph (2), (3), or (4) in the current Plan
Year (but not in the prior Plan Year) and is among
the 100 employees paid the greatest Compensation by
the employer during the current Plan Year.
(6) The individual is a former employee who
had a separation year prior to the current Plan Year
and such individual performed services for the
employer and was a Highly Compensated Employee for
either (i) such separation year, or (ii) any Plan
Year ending on or after the individual's 55th
birthday. A "separation year" is the Plan Year in
which the individual separates from service with the
employer. With respect to an individual who
separated from service before January 1, 1987, the
individual will be included as a Highly Compensated
Employee only if the individual was a more than
5-percent owner or received Compensation in excess
of $50,000
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during (i) the employee's separation year (or the
year preceding such separation year), or (ii) any
year ending on or after such individual's 55th
birthday (or the last year ending before such
individual's 55th birthday).
(7)Notwithstanding the foregoing, if the Participating
Employers maintained significant business activities
and employed employees in at least two significantly
separate geographic areas at all times during the
Plan Year and satisfied such other conditions as the
Secretary may prescribe, the Company may elect to
determine whether an employee is a Highly
Compensated Employee for that year by substituting
"$50,000" for "$75,000" in paragraph (2) and
disregarding paragraph (3).
(b) The dollar amounts specified in paragraphs (2),
(3), (4) and (7) of subsection (a) shall be indexed for
cost of living increases for each calendar year after
1987 as provided in the applicable Treasury regulations.
For any Plan Year, the applicable dollar amount shall be
the dollar amount in effect for the calendar year in
which the Plan Year commences.
(c) For purposes of this section, "employer" includes
all Participating Employers and Affiliates, and
"employee" includes Leased Employees.
(d) For purposes of this section, "Compensation" means
the amount defined as such under Sec. 6.1(f) plus the
Before Tax Contributions to this Plan and any elective
salary reduction contributions made by or on behalf of
the employee to any other plan maintained by a
Participating Employer or an Affiliate which are not
includible in the gross income of the employee under
Code sections 125, 401(k), 402(h)(1)(B), or 403(b).
SEC. 2.16 LEASED EMPLOYEEEC. 2.16 LEASED EMPLOYEE.
"Leased Employee" means any person defined as such by Code
section 414(n). In general, a Leased Employee is any person who
is not otherwise an employee of a Participating Employer or an
Affiliate (referred to collectively as the "recipient") and who
pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the
recipient (or for the recipient and related persons determined
in accordance with Code section 414(n)(6)) on a substantially
full-time basis for a period of at least one year and such
services are of a type historically performed by employees in
the business field of the recipient. For purposes of the
requirements listed in Code section 414(n)(3), any Leased
Employee shall be treated as an employee of the recipient, and
contributions or benefits provided by the leasing organization
which are attributable to services performed for the recipient
shall be treated as provided by the recipient. However, if
Leased Employees constitute less than 20% of the Participating
Employers' non-highly compensated work force within the meaning
of Code section 414(n)(5)(C)(ii), those Leased Employees covered
by a plan described in Code section 414(n)(5) shall be
disregarded. Notwithstanding the foregoing, no Leased Employee
shall be a Qualified Employee or a Participant in this Plan.
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SEC. 2.17 MATCHING CONTRIBUTIONEC. 2.17 MATCHING
CONTRIBUTION. A "Matching Contribution" is an amount
contributed by a Participating Employer under Sec. 5.2.
SEC. 2.18 NAMED FIDUCIARYEC. 2.18 NAMED FIDUCIARY.
The Company is a "Named Fiduciary" for purposes of ERISA with
authority to control or manage the operation and administration
of the Plan, including control or management of the assets of
the Plan. Other persons are also Named Fiduciaries under ERISA
if so provided thereunder or if so identified by the Company, by
action of the Board. Such other person or persons shall have
such authority to control or manage the operation and
administration of the Plan, including control or management of
the assets of the Plan, as may be provided by ERISA or as may be
allocated by the Company, by action of the Board.
SEC. 2.19 NON-HIGHLY COMPENSATED
EMPLOYEEEC. 2.19 NON-HIGHLY COMPENSATED EMPLOYEE. "Non-Highly
Compensated Employee" means an employee of the Participating
Employers who is neither a Highly Compensated Employee nor a
Family Member.
SEC. 2.20 NORMAL RETIREMENT AGEEC. 2.20 NORMAL
RETIREMENT AGE. "Normal Retirement Age" is age 65.
SEC. 2.21 PARTICIPANTEC. 2.21 PARTICIPANT. A
"Participant" is an individual described as such in Article IV.
SEC. 2.22 PARTICIPATING
LOCATIONEC. 2.22 PARTICIPATING LOCATION. A "Participating
Location" is any location of a Participating Employer designated
as such in the Schedule of Participating Locations of any
appendix to the Plan (which are attached hereto and made a part
hereof). Such location shall become a Participating Location as
of the date specified in such Schedule.
SEC. 2.23 PLAN YEAREC. 2.23 PLAN YEAR. A "Plan
Year" is the 12-consecutive-month period commencing on
January 1.
SEC. 2.24 PREDECESSOR EMPLOYEREC. 2.24 PREDECESSOR
EMPLOYER. A "Predecessor Employer" is any corporation,
partnership, firm, or individual, an integral portion of whose
assets and business has been acquired by a Participating
Employer or from whose employment an integral group or unit of
employees has been transferred to employment by a Participating
Employer, and which is designated as such in Table 2 (which is
attached hereto and made a part hereof). Any other employer
shall be a Predecessor Employer if so required by regulations
prescribed by the Secretary of the Treasury. With respect to
each such Predecessor Employer, all of its employees who become
Participants hereunder shall be treated uniformly; the use of
prior service with such employer shall not produce
discrimination in favor of Highly Compensated Employees; and
there shall be no duplication of benefits.
SEC. 2.25 QUALIFIED EMPLOYEEEC. 2.25 QUALIFIED
EMPLOYEE. "Qualified Employee" means each employee of a
Participating Employer at a Participating Location who either
(i) is compensated on an hourly rate basis or (ii) is
compensated on a regular salary basis but is classified by the
Company as an "hourly" employee because the employee is a
nonsupervisory employee serving on a barge, subject to the
following:
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(a)An employee is not a Qualified Employee prior to the
date as of which his or her employer becomes a
Participating Employer. An employee is not a Qualified
Employee prior to the date as of which the employee's
workplace becomes a Participating Location.
(b)A nonresident alien within the meaning of Code section
7701(b)(1)(B) while not receiving earned income (within
the meaning of Code section 911(d)(2)) from a
Participating Employer which constitutes income from
sources within the United States (within the meaning of
Code section 861(a)(3)) is not a Qualified Employee.
(c)Eligibility of employees in a collective bargaining unit
to participate in the Plan is subject to negotiations
with the representative of that unit. During any period
that an employee is covered by the provisions of a
collective bargaining agreement between a Participating
Employer and such representative, the employee shall not
be considered a Qualified Employee for purposes of this
Plan unless such agreement expressly so provides. For
purposes of this section only, such an agreement shall
be deemed to continue after its formal expiration during
collective bargaining negotiations pending the execution
of a new agreement.
(d)An employee shall be deemed to be a Qualified Employee
during a period of absence from active service which
does not result from a Termination of Employment,
provided he or she is a Qualified Employee at the
commencement of such period of absence.
(e)The Qualified Employees at a Participating Location may
be less than all of the employees at the Participating
Location if so specified in the Schedule of
Participating Locations for any appendix.
SEC. 2.26 SUCCESSOR EMPLOYEREC. 2.26 SUCCESSOR
EMPLOYER. A "Successor Employer" is any entity that succeeds to
the business of a Participating Employer through merger,
consolidation, acquisition of all or substantially all of its
assets, or any other means and which elects before or within a
reasonable time after such succession, by appropriate action
evidenced in writing, to continue the Plan; provided, however,
that in the case of such succession with respect to any
Participating Employer other than the Company, the acquiring
entity shall be a Successor Employer only if consent thereto is
granted by the Company, by action of the Board or a duly
authorized officer.
SEC. 2.27 TOP-HEAVY PLANEC. 2.27 TOP-HEAVY PLAN.
"Top-Heavy Plan" is defined in Sec. 14.2(a).
SEC. 2.28 TRUSTEEEC. 2.28 TRUSTEE. The "Trustee" is
a trustee or trustees appointed and acting from time to time in
accordance with the provisions of Sec. 11.2 for the purpose of
holding, investing, and disbursing ADM Stock and all or any part
of the other assets of the Fund.
SEC. 2.29 VALUATION DATEEC. 2.29 VALUATION DATE.
"Valuation Date" means the date on which the Fund and Accounts
are valued as provided in Article VII. Each of the following is
a Valuation Date:
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(a) The last day of each quarter of a Plan Year.
(b) Such other day, as designated by the Company in
written notice to the Trustee, as the Company in its
sole discretion may consider necessary or advisable to
provide for the orderly and equitable administration of
the Plan.
ARTICLE III
SERVICE PROVISIONSRTICLE III
SERVICE PROVISIONS
SEC. 3.1 EMPLOYMENT COMMENCEMENT
DATEEC. 3.1 EMPLOYMENT COMMENCEMENT DATE. "Employment
Commencement Date" means the date on which an employee first
performs an Hour of Service for a Participating Employer
(whether before or after the Participating Employer becomes
such), an Affiliate, or a Predecessor Employer. The date on
which an employee first performs an Hour of Service after a
1-Year Break in Service is also an "Employment Commencement
Date".
SEC. 3.2 TERMINATION OF
EMPLOYMENTEC. 3.2 TERMINATION OF EMPLOYMENT. The "Termination
of Employment" of an employee for purposes of the Plan shall be
deemed to occur upon resignation, discharge, retirement, death,
disability, failure to return to active work at the end of an
authorized leave of absence or the authorized extension or
extensions thereof, failure to return to work when duly called
following a temporary layoff, or upon the happening of any other
event or circumstance which, under the policy of a Participating
Employer, Affiliate, or Predecessor Employer as in effect from
time to time, results in the termination of the
employer-employee relationship; provided, however, that a
Termination of Employment shall not be deemed to occur upon a
transfer between any combination of Participating Employers,
Affiliates, and Predecessor Employers. If the employer-employee
relationship is terminated because of the entry of an employee
into the armed forces of the United States and if the employee
subsequently returns to employment with a Participating Employer
or an Affiliate under circumstances such that he or she has
reemployment rights under the provisions of any applicable
federal law, for all purposes of the Plan and only for such
purposes the employee shall be deemed to have been on authorized
leave of absence during the period of military service. For
purposes of this Plan, a Participant has a Termination of
Employment due to disability as of the date the Participant
becomes entitled to benefits on account of disability under any
applicable pension or long term disability program maintained by
the Participant's employer, or, if there is no such program, at
the time the Participant ceases active work due to total and
permanent disability. Notwithstanding the foregoing, a
Termination of Employment shall be deemed not to have occurred
for purposes of entitling a Participant to distributions from
his or her Before Tax Account or Matching Account if the
Participant has not incurred a "separation from service" or
"disability" as defined in applicable regulations, except as
provided in Sec. 10.11.
SEC. 3.3 HOURS OF SERVICEEC. 3.3 HOURS OF SERVICE.
"Hours of Service" are determined according to the following
subsections with respect to each applicable computation period.
The Company may round up the number of Hours of Service 9
PAGE 10
at the end of each computation period or more frequently as long
as a uniform practice is followed with respect to all employees
determined by the Company to be similarly situated for
compensation, payroll, and recordkeeping purposes.
(a)Hours of Service are computed only with respect to
service with Participating Employers (for service both
before and after the Participating Employer becomes
such), Affiliates, and Predecessor Employers and are
aggregated for service with all such employers.
However, no Hours of Service shall be credited with a
Participating Employer or an Affiliate prior to the
earliest date said entity is under Common Control with
an entity which is then a Participating Employer.
(b)For any portion of a computation period during which a
record of hours is maintained for an employee, Hours of
Service shall be credited as follows:
(1)Each hour for which the employee is paid, or
entitled to payment, for the performance of duties
for his or her employer during the applicable
computation period is an Hour of Service.
(2)Each hour for which the employee is paid, or
entitled to payment, by his or her employer on
account of a period of time during which no duties
are performed (irrespective of whether the
employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty, or
leave of absence, is an Hour of Service. No more
than 501 Hours of Service shall be credited under
this paragraph for any single continuous period
(whether or not such period occurs in a single
computation period). Hours of Service shall not be
credited under this paragraph with respect to
payments under a plan maintained solely for the
purpose of complying with applicable workers'
compensation, unemployment compensation, or
disability insurance laws or with respect to a
payment which solely reimburses the individual for
medical or medically related expenses incurred by
the employee.
(3)Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed
to by the employer is an Hour of Service. Such
Hours of Service shall be credited to the
computation period or periods to which the award or
agreement for back pay pertains, rather than to the
computation period in which the award, agreement, or
payment is made. Crediting of Hours of Service for
back pay awarded or agreed to with respect to
periods described in paragraph (2) shall be subject
to the limitations set forth therein.
(4)Hours under this subsection shall be calculated and
credited pursuant to section 2530.200b-2 of the
Department of Labor Regulations, which are
incorporated herein by this reference.
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(5)The Company may use any records to determine Hours
of Service which it considers an accurate reflection
of the actual facts.
(c)For any portion of a computation period during which an
employee is within a classification for which a record
of hours for the performance of duties is not
maintained, the employee shall be credited with 190
Hours of Service for each month for which he or she
would otherwise be credited with at least one Hour of
Service under subsection (b).
(d)Nothing in this section shall be construed as denying an
employee credit for an Hour of Service if credit is
required by any federal law other than ERISA. The
nature and extent of such credit shall be determined
under such other law.
(e)In no event shall duplicate credit as an Hour of Service
be given for the same hour.
(f)This subsection shall apply to an individual who has
service as (i) either a common law employee or a Leased
Employee of (ii) either a Participating Employer or
Affiliate. For purposes of determining Hours of
Service, such an individual shall be considered an
employee of the Participating Employer or Affiliate
during any period he or she would have been a Leased
Employee of such Participating Employer or Affiliate but
for the requirement that he or she must have performed
services for such Participating Employer or Affiliate on
a substantially full-time basis for a period of at least
one year. If this Plan is a multiple employer plan as
defined in section 2530.210 of the Department of Labor
Regulations, service as a leased individual with more
than one legal entity shall be aggregated only in
accordance with the rules set forth in said section.
SEC. 3.4 ELIGIBILITY COMPUTATION
PERIODEC. 3.4 ELIGIBILITY COMPUTATION PERIOD. An employee's
first Eligibility Computation Period is the 12-consecutive-month
period beginning on his or her Employment Commencement Date. The
second Eligibility Computation Period is the Plan Year
commencing in said 12-consecutive-month period. Each subsequent
Plan Year prior to the end of the Plan Year in which the
employee has a 1-Year Break In Service is an Eligibility
Computation Period. If subsequent to a 1-Year Break In Service
the employee has another Employment Commencement Date,
Eligibility Computation Periods for the period beginning on such
date shall be computed as though such date were the employee's
first Employment Commencement Date.
SEC. 3.5 YEAR OF ELIGIBILITY SERVICEEC. 3.5 YEAR OF
ELIGIBILITY SERVICE. A "Year of Eligibility Service" is an
Eligibility Computation Period in which an employee has at least
1000 Hours of Service.
SEC. 3.6 1-YEAR BREAK IN SERVICEEC. 3.6 1-YEAR BREAK
IN SERVICE. "1-Year Break In Service" means a Plan Year in
which the employee has 500 or fewer Hours of Service. The
1-Year Break In Service shall be recognized as such on the last
day of such Plan Year.
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(a)Notwithstanding the provisions of Sec. 3.3, for purposes
of determining whether a 1-Year Break In Service has
occurred with respect to a Plan Year beginning after
1984, an individual who is absent from work for
maternity or paternity reasons shall receive credit for
the Hours of Service which would otherwise have been
credited to such individual but for such absence, or in
any case in which such hours cannot be determined, 8
Hours of Service per day of such absence; provided,
however, that the total number of Hours of Service
recognized under this subsection shall not exceed 501
hours. The Hours of Service credited under this
subsection shall be credited in the Plan Year in which
the absence begins if the crediting is necessary to
prevent a 1-Year Break In Service in that Plan Year or,
in all other cases, in the following Plan Year.
(b)For purposes of subsection (a), an absence from work for
maternity or paternity reasons means an absence that
started during a Plan Year beginning after 1984 (i) by
reason of the pregnancy of the individual, (ii) by
reason of the birth of a child of the individual, (iii)
by reason of the placement of a child with the
individual in connection with the adoption of such child
by such individual, or (iv) for purposes of caring for
such child for a period beginning immediately following
such birth or placement.
ARTICLE IV
PLAN PARTICIPATIONRTICLE IV
PLAN PARTICIPATION
SEC. 4.1 ENTRY DATEEC. 4.1 ENTRY DATE. "Entry Date"
means January 1 and July 1 of each Plan Year.
SEC. 4.2 ELIGIBILITY FOR
PARTICIPATIONEC. 4.2 ELIGIBILITY FOR PARTICIPATION.
Eligibility to participate in the Plan shall be determined as
follows:
(a)An employee shall become a Participant on the date the
employee's workplace becomes a Participating Location,
provided both of the following requirements are met:
(1) The employee is a Qualified Employee on
said date.
(2) The employee has completed one Year of
Eligibility Service during an Eligibility
Computation Period that ended prior to said date.
(b)Except as provided in subsection (a), an employee of a
Participating Employer shall become a Participant in the
Plan on the earliest Entry Date (on or after the date
the Plan becomes effective with respect to his or her
Participating Location) on which both of the following
requirements are met:
(1) The employee is a Qualified Employee.
(2)The employee has completed one Year of Eligibility
Service during an Eligibility Computation Period
that ended prior to
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PAGE 13
the Entry Date.
(c)If a former Participant is reemployed and meets the
requirements of subsection (b) on the date of rehire,
the employee will become a Participant again on that
date.
(d)If a former employee who was not previously a
Participant is reemployed as a Qualified Employee, if
the employee meets the requirements of subsection (b) on
the date of rehire, and if the employee would have met
the requirements of subsection (b) on the immediately
preceding Entry Date if he or she had been a Qualified
Employee on that Entry Date, the employee shall become a
Participant on the date of rehire.
(e)If an employee of a Participating Employer or an
Affiliate who is neither a Participant nor a Qualified
Employee is transferred to a position in which he or she
is a Qualified Employee, and if the employee would have
met the eligibility requirements of subsection (b) on
the Entry Date preceding the transfer had he or she been
a Qualified Employee on that Entry Date, the employee
shall become a Participant on the date of transfer.
(f)If a nonvested employee has a 1-Year Break In Service,
Years of Eligibility Service prior to such break shall
not be recognized for purposes of this section if the
number of the employee's consecutive 1-Year Breaks In
Service equals or exceeds the greater of (i) five or
(ii) the aggregate number of Years of Eligibility
Service before the break, subject to the following:
(1)If any Years of Eligibility Service are not required
to be taken into account by reason of a
break-in-service period to which this subsection
applies, such Years of Eligibility Service shall not
be taken into account in applying this subsection to
a subsequent break-in-service period.
(2)For purposes of this subsection, a "nonvested
employee" is an individual who has no vested right
to an accrued benefit under the Plan derived from
employer contributions (including Before Tax
Contributions).
SEC. 4.3 DURATION OF PARTICIPATIONEC. 4.3 DURATION
OF PARTICIPATION. A Participant shall continue to be such until
the later of:
(a) The Participant's Termination of Employment.
(b)The date all benefits, if any, to which the Participant
is entitled hereunder have been distributed from the
Fund.
SEC. 4.4 NO GUARANTEE OF EMPLOYMENTEC. 4.4 NO
GUARANTEE OF EMPLOYMENT. Participation in the Plan does not
constitute a guarantee or contract of employment with the
Participating Employers. Such participation shall in no way
interfere with any rights the Participating Employers would have
in the absence of such participation to determine the duration
of an employee's employment.
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PAGE 14
ARTICLE V
CONTRIBUTIONSRTICLE V
CONTRIBUTIONS
SEC. 5.1 BEFORE TAX CONTRIBUTIONSEC. 5.1 BEFORE TAX
CONTRIBUTIONS. Each Active Participant may elect to have his or
her Participating Employer make Before Tax Contributions on his
or her behalf, subject to the following:
(a)The Participant may elect to have his or her current
earnings reduced by any whole percent the Participant
may designate, but not exceeding the percentage of
Certified Earnings specified in the appendix to the Plan
applicable to the Participant's Participating Location.
This election may only be made pursuant to a written
salary reduction agreement. The agreement shall be in
such form and executed subject to such rules as the
Company may prescribe. Each election shall apply only
to earnings which become payable after the election is
filed with the Company. Each election shall continue in
effect until a new election is filed pursuant to this
section.
(b)Each Participating Employer will make a Before Tax
Contribution with respect to each Participant in its
employ who elects to have earnings for that period
reduced pursuant to this section. The amount of the
contribution, to be made in the manner described in
Sec. 5.3, will be equal to the amount by which the
Participant's earnings were reduced.
(c)The salary reduction agreement may be effective as of
the date on which the employee becomes a Participant or
any following January 1 or July 1; provided that the
employee has filed the agreement with the Company at
least 15 days prior to the effective date. If an
employee who becomes a Participant pursuant to
Sec. 4.2(e) was an Active Participant under the ADM
Savings and Investment Plan (the "Salaried Plan")
immediately before becoming a Participant in this Plan,
the Participant shall be deemed to have made a salary
reduction agreement for purposes of this Plan identical
to the agreement in effect for purposes of the Salaried
Plan, unless the participant enters into a new agreement
pursuant to this subsection. Notwithstanding the
foregoing, an employee who becomes a Participant
pursuant to Sec. 4.2(a), (c), (d), or (e) may file a
salary reduction agreement with the Company during the
15-day period following the date he or she becomes a
Participant, which shall be effective as of the first
day of the pay period following the date the agreement
is filed.
(d)An Active Participant may amend his or her salary
reduction agreement to increase or decrease the
contribution rate effective as of any January 1 or
July 1 by filing an approved amendment form with the
Company at least 15 days prior to the effective date.
(e)An Active Participant may discontinue making Before Tax
Contributions at any time by filing a written election
with the
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PAGE 15
Company. That election shall be effective as soon as
administratively feasible after it is filed with the
Company. The Participant may thereafter resume Before
Tax Contributions as of any January 1 or July 1 which is
at least six months after the date contributions were
discontinued, by filing a new salary reduction agreement
at least 15 days prior to the effective date.
(f)All Before Tax Contributions by a Participant shall
cease when the Participant ceases to be a Qualified
Employee.
(g)Before Tax Contributions by a Participant for any
calendar year may not exceed $7,627, and shall cease at
the point that limit is reached during the year. The
$7,627 limit in the previous sentence shall be adjusted
after 1989 for any cost of living increases provided for
any calendar year in accordance with regulations issued
by the Secretary of the Treasury.
(h)Notwithstanding the foregoing provisions, if the
Participant has received a hardship distribution from
this Plan in accordance with Sec. 9.3(a) or from any
other plan maintained by a Participating Employer or an
Affiliate, no Before Tax Contributions shall be made to
this Plan on behalf of such Participant for 12 months
following the date on which the hardship distribution
was made. Furthermore, the limit under subsection (g)
for the calendar year following the year in which the
hardship withdrawal is made shall be reduced by the
amount of Before Tax Contributions (and any elective
contributions to any other plan maintained by the
employer) for the calendar year in which the hardship
withdrawal was made.
(i) If a Participant's Before Tax Contributions are
suspended under subsection (h), the Participant may
elect to recommence Before Tax Contributions effective
as of any January 1 or July 1 following the end of the
12-month suspension period by filing a new election form
with the Company at least 15 days prior to the effective
date.
SEC. 5.2 MATCHING CONTRIBUTIONSEC. 5.2 MATCHING
CONTRIBUTIONS. The Participating Employers will match each
Participant's Before Tax Contributions in accordance with the
following:
(a)The Participating Employers shall make a Matching
Contribution for each month for each Participant in an
amount determined according to the appendix to the Plan
applicable to the Participant's Participating Location.
(b) No Matching Contribution will be made with respect
to any amount by which the Participant's Before Tax
Contribution must be reduced pursuant to Sec. 5.4,
Sec. 5.5 or Sec. 5.7. Any such Matching Contributions
which are made before the amount of the reduction is
determined shall be forfeited and shall be applied as a
credit against future contributions from the
Participating Employers.
SEC. 5.3 BEFORE TAX AND MATCHING CONTRIBUTIONS MADE
AS ADM STOCKEC. 5.3 BEFORE TAX AND MATCHING CONTRIBUTIONS MADE
AS ADM STOCK.
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PAGE 16
Before Tax Contributions elected by a Participant and the
related Matching
Contributions shall be contributed by the Participating Employer
to the Fund in the form of ADM Stock pursuant to the following
provisions:
(a) The aggregate dollar amount of Before Tax
Contributions and Matching Contributions for all
Participants for a particular month will be divided by
the average closing price of a share of ADM Stock on the
New York Stock Exchange during all of the trading days
in that month.
(b) The number of shares determined under subsection
(a) for a particular month shall be contributed by the
Participant's Participating Employer to the Trustee
promptly after the close of that month. The shares will
be credited to the Participants' Before Tax Accounts and
Matching Accounts as of the Valuation Date at the end of
the quarter in which the month occurred in the
proportion that each such Participant's Before Tax
Contributions or Matching Contributions bears to the
total such contributions for all Participants for that
quarter.
(c)However, the Company may in its sole discretion reduce
the Before Tax Contributions or postpone the
contribution or allocation of shares to Accounts if the
Company deems the reduction or postponement advisable to
facilitate compliance with the requirements of Sections
5.4 through 5.7. If Before Tax Contributions are
reduced or postponed, Matching Contributions with
respect thereto shall also be reduced or postponed.
SEC. 5.4 ADJUSTMENT OF CONTRIBUTIONS REQUIRED BY CODE
SECTION 401(K)EC. 5.4 ADJUSTMENT OF CONTRIBUTIONS REQUIRED BY
CODE SECTION 401(K). If necessary to satisfy the requirements
of Code section 401(k), Before Tax Contributions shall be
adjusted in accordance with the following:
(a)Each Plan Year, the "deferral percentage" will be
calculated for each Active Participant. Each
Participant's deferral percentage is calculated by
dividing the amount referred to in paragraph (1) by the
amount referred to in paragraph (2), subject to the
family aggregation rules in subsection (g):
(1)The total Before Tax Contributions (including Excess
Deferrals of Highly Compensated Employees
distributed under Sec. 5.5 but excluding Excess
Deferrals of Non-Highly Compensated Employees that
arise solely from contributions made under plans of
the Participating Employers or Affiliates), if any,
allocated to the Participant's Accounts with respect
to the Plan Year. The Company may also elect to
include all or part of the Matching Contributions to
be allocated to the Participant's Accounts with
respect to that Plan Year, provided that the
provisions of Treasury Regulation 1.401(k)-1(b)
are satisfied.
(2)The Participant's Compensation with respect to the
Plan Year. For purposes of this section, a
Participant's "Compensation" for the Plan Year means
compensation determined according to a definition
selected by the Company for that year which
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PAGE 17
satisfies the requirements of Code section 414(s).
The same definition of Compensation shall be used
for all Participants for a particular Plan Year, but
different definitions may be used for different Plan
Years. Compensation shall be subject to the limit
provided under Sec. 2.8(e).
(b)Each Plan Year, the average deferral percentage for
Active Participants who are Highly Compensated Employees
and the average deferral percentage for Active
Participants who are Non-Highly Compensated Employees
will be calculated. A separate average deferral
percentage shall be calculated for Active Participants
in a collective bargaining unit who are required to be
disaggregated pursuant to Treasury Regulation 1.401(k)-
1(b)(3)(ii)(B). Such Participants shall be disregarded
in calculating the average deferral percentage for
Active Participants who are not in such collective
bargaining units. In each case, the average is the
average of the percentages calculated under subsection
(a) for each of the employees in the particular group.
The deferral percentage for each Participant and the
average deferral percentage for a particular group of
employees shall be calculated to the nearest
one-hundredth of one percent.
(c)If the requirements of either paragraph (1) or (2) are
satisfied, then no further action is needed under this
section:
(1)The average deferral percentage for Participants who
are Highly Compensated Employees is not more than
1.25 times the average deferral percentage for
Participants who are Non-Highly Compensated
Employees.
(2)The excess of the average deferral percentage for
Participants who are Highly Compensated Employees
over the average deferral percentage for
Participants who are Non-Highly Compensated
Employees is not more than two percentage points,
and the average deferral percentage for such Highly
Compensated Employees is not more than 2 times the
average deferral percentage for such Non-Highly
Compensated Employees.
The requirements of this subsection (c) shall be applied
separately with respect to Participants in a collective
bargaining unit who are required to be disaggregated
pursuant to Treasury Regulation 1.401(k)-
1(b)(3)(ii)(B).
(d)If neither of the requirements of subsection (c) is
satisfied, then the Before Tax Contributions with
respect to Highly Compensated Employees shall be
reduced, beginning with the contributions representing
the highest percent of Compensation and taking into
account the family aggregation rules under subsection
(g)(2), if applicable, to the extent necessary to meet
the requirements of subsection (c)(1) or (c)(2),
whichever is met first.
(e)At any time during the Plan Year, the Company may make
an estimate of the amount of Before Tax Contributions by
Highly Compensated
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PAGE 18
Employees that will be permitted under this section for
the year and may reduce the percent specified in
Sec. 5.1(a) for such Participants to the extent the
Company determines in its sole discretion to be
necessary to satisfy at least one of the requirements in
subsection (c).
(f)If Before Tax Contributions with respect to a Highly
Compensated Employee are reduced pursuant to subsection
(d), the Excess Before Tax Contributions shall be
distributed, subject to the following:
(1)For purposes of this subsection, "Excess Before tax
Contributions" mean the amount by which Before Tax
Contributions for Highly Compensated Employees have
been reduced under subsection (d).
(2)Excess Before Tax Contributions (adjusted for income
or losses allocable thereto as specified in
paragraph (3), if any) shall be distributed to
Participants on whose behalf such excess
contributions were made for the Plan Year no later
than the last day of the following Plan Year.
Furthermore, the Company shall attempt to distribute
such amount by the 15th day of the third month
following the Plan Year for which the excess
contributions were made to avoid the imposition on
the Participating Employers of an excise tax under
Code section 4979.
(3)Income or losses allocable to Excess Before Tax
Contributions shall be equal to the amount of income
or loss allocable to such excess amount for the Plan
Year pursuant to Sec. 7.2 and Sec. 7.3; provided,
however, that for Plan Years beginning prior to
1992, such income or loss may be determined under
any alternative method selected by the Company for
that Plan Year which is permitted under applicable
Treasury regulations.
(4) The amount of Excess Before Tax
Contributions and income or losses allocable thereto
which would otherwise be distributed pursuant to
this subsection shall be reduced, in accordance with
regulations, by the amount of Excess Deferrals and
income or losses allocable thereto previously
distributed to the Participant pursuant to Sec. 5.5
for the calendar year ending with or within the Plan
Year.
(g)If a Highly Compensated Employee is subject to the
family aggregation rules of Code section 414(q)(6)
because such individual is a more than 5-percent owner
or is among the 10 highest paid Highly Compensated
Employees, the following rules shall apply:
(1)For purposes of determining the deferral percentage
of the Highly Compensated Employee and Family
Members under subsection (a), one combined deferral
percentage shall apply to the family group (which is
treated as one Highly Compensated Employee).
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PAGE 19
(A)The combined deferral percentage shall be
determined by combining the contributions and
Compensation for all of the eligible Family
Members.
(B)All Family Members included in the family group
shall be disregarded in determining the average
deferral percentage for Participants who are
Non-Highly Compensated Employees. If an employee
is required to be aggregated as a member of more
than one family group, all eligible employees who
are members of those family groups that include
that employee shall be treated as one family
group under this subsection (g).
(2)If subsection (d) requires the reduction of
contributions on behalf of a Highly Compensated
Employee who is subject to the family aggregation
rules set forth in paragraph (1) of this subsection,
the Excess Before Tax Contributions shall be
allocated among the Family Members in proportion to
the dollar amount of Before Tax Contributions (and
amounts treated as Before Tax Contributions under
subsection (a)(1) of this section) made by each
Family Member who was included in the combined
deferral percentage.
(h)The deferral percentage for any Participant who is a
Highly Compensated Employee for the Plan Year, and who
is eligible to participate in two or more plans with
cash or deferred arrangements described in Code section
401(k) to which any Participating Employer or Affiliate
contributes, shall be determined as if all employer
contributions were made under a single arrangement
unless mandatorily disaggregated pursuant to regulations
under Code section 401(k). This subsection shall be
applied by treating all cash or deferred arrangements
with Plan Years ending within the same calendar year as
a single arrangement.
(i)If two or more plans which include cash or deferred
arrangements are considered as one plan for purposes of
Code section 401(a)(4) or Code section 410(b), the cash
or deferred arrangements shall be treated as one for the
purposes of applying the provisions of this section
unless mandatorily disaggregated pursuant to regulations
under Code section 401(k).
(j)If the entire Account balance of a Highly Compensated
Employee has been distributed during the Plan Year in
which an excess arose, the distribution shall be deemed
to have been a corrective distribution of the excess and
income attributable thereto to the extent that a
corrective distribution would otherwise have been
required under subsection (f) of this section, Sec. 5.5
or Sec. 5.6(f).
(k)A corrective distribution of excess contributions under
subsection (f) of this section, Excess Aggregate
Contributions under Sec. 5.6(f), or Excess Deferrals
under Sec. 5.5 may be made without regard to any notice
or Participant or spousal consent required under Article
VIII or X.
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PAGE 20
(l)In the event of a complete termination of the Plan
during the Plan Year in which an excess arose, any
corrective distribution under subsection (f) of this
section or Sec. 5.6(f) shall be made as soon as
administratively feasible after the termination, but in
no event later than 12 months after the date of
termination.
(m)For Plan Years beginning prior to 1992, the Plan may be
restructured into component plans pursuant to Treasury
Regulations 1.401(k)-1(h)(3)(iii) and
1.401(m)-1(g)(5)(ii) for purposes of applying the
requirements of this section and Sec. 5.6. This
subsection (m) shall not apply to Plan Years beginning
in 1992 or later.
SEC. 5.5 DISTRIBUTION OF EXCESS
DEFERRALSEC. 5.5 DISTRIBUTION OF EXCESS DEFERRALS.
Notwithstanding any other provisions of the Plan, Excess
Deferrals for a calendar year and income or losses allocable
thereto shall be distributed no later than the following
April 15 to Participants who claim such Excess Deferrals,
subject to the following:
(a) For purposes of this section, "Excess Deferrals"
means the amount of Before Tax Contributions for a
calendar year that the Participant claims pursuant to
the procedure set forth in subsection (b) because the
total amount deferred for the calendar year exceeds
$7,627 for 1989 (indexed for inflation for subsequent
calendar years) or such other limit imposed on the
Participant for that year under Code section 402(g).
(b) The Participant's written claim, specifying the
amount of the Participant's Excess Deferral for any
calendar year, shall be submitted to the Company no
later than the March 1 following such calendar year.
The claim shall include the Participant's written
statement that if such amounts are not distributed, such
Excess Deferrals, when added to amounts deferred under
other plans or arrangements described in Code section
401(k), 403(b), or 408(k), exceed the limit imposed on
the Participant by Code section 402(g) for the year in
which the deferral occurred. A Participant shall be
deemed to have submitted such a claim to the extent the
Participant has Excess Deferrals for the calendar year
taking into account only contributions under this Plan
and any other plan maintained by a Participating
Employer or an Affiliate.
(c) Excess Deferrals distributed to a Participant with
respect to a calendar year shall be adjusted to include
income or losses allocable thereto using the same method
specified for Excess Before Tax Contributions under
Sec. 5.4(f)(3).
(d) The amount of Excess Deferrals and income allocable
thereto which would otherwise be distributed pursuant to
this section shall be reduced, in accordance with
applicable regulations, by the amount of Excess Before
Tax Contributions and income allocable thereto
previously distributed to the Participant
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PAGE 21
pursuant to Sec. 5.4 for the Plan Year beginning with or
within such calendar year, and by the amount of any
deferrals properly distributed as excess annual
additions under Sec. 6.1.
SEC. 5.6 ADJUSTMENT OF CONTRIBUTIONS
REQUIRED BY CODE SECTION 401(M)EC. 5.6 ADJUSTMENT OF
CONTRIBUTIONS REQUIRED BY CODE SECTION 401(M). After the
provisions of Sec. 5.4 and Sec. 5.5 have been satisfied, the
requirements set forth in this section must also be met. If
necessary to satisfy the requirements of Code section 401(m),
Matching Contributions shall be adjusted in accordance with the
following:
(a) Each Plan Year, the "contribution percentage" will
be calculated for each Active Participant who is not in
a collective bargaining unit required to be
disaggregated pursuant to Treasury Regulation 1.401(m)-
1(b)(3)(ii). Each Participant's contribution percentage
is calculated by dividing the amount referred to in
paragraph (1) by the amount referred to in paragraph
(2), subject to the family aggregation rules in
subsection (g).
(1) The total Matching Contributions under
Sec. 5.2 (other than amounts included under
Sec. 5.4(a)(1)), if any, allocated to the
Participant's Accounts with respect to the Plan
Year. The Company may also elect to include all or
part of the Before Tax Contributions to be allocated
to the Participant's Accounts with respect to that
Plan Year, provided that the requirements of
Treasury Regulation 1.401(m)-1(b) are satisfied and
provided that the requirements of Sec. 5.4 are met
before such contributions are used under this
section and continue to be met after the exclusion
for purposes of Sec. 5.4 of those contributions that
are used to satisfy the requirements of this
section. However, any Matching Contributions that
are forfeited because the contributions to which
they relate are Excess Before Tax Contributions
under Sec. 5.4 or Excess Deferrals under Sec. 5.5
shall be disregarded.
(2)The Participant's Compensation with respect to the
Plan Year. For purposes of this section,
"Compensation" has the same meaning as provided in
Sec. 5.4(a)(2).
(b) Each Plan Year, the average contribution percentage
of Active Participants who are Highly Compensated
Employees and the average contribution percentage for
Active Participants who are Non-Highly Compensated
Employees will be calculated. In each case, the average
is the average of the percentages calculated under
subsection (a) for each of the employees in the
particular group. In calculating such average
contribution percentages, Participants employed in a
collective bargaining unit required to be disaggregated
pursuant to Treasury Regulation 1.401(m)-1(b)(3)(ii)
shall be disregarded. The contribution percentage for
each Participant and the average contribution percentage
for a particular group of employees shall be calculated
to the nearest one-hundredth of one percent.
(c) If the requirements of either paragraph (1) or (2)
are satisfied, then no further action is needed under
this section:
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PAGE 22
(1) The average contribution percentage for
Participants who are Highly Compensated Employees is
not more than 1.25 times the average contribution
percentage for Participants who are Non-Highly
Compensated Employees.
(2) The excess of the average contribution
percentage for Participants who are Highly
Compensated Employees over the average contribution
percentage for Participants who are Non-Highly
Compensated Employees is not more than two
percentage points, and the average contribution
percentage for such Highly Compensated Employees is
not more than 2 times the average contribution
percentage for such Non-Highly Compensated
Employees.
(d) If neither of the requirements of subsection (c) is
satisfied, then the Matching Contributions with respect
to Highly Compensated Employees shall be reduced,
beginning with the contributions representing the
highest percentage of Compensation, to the extent
necessary to meet the requirements of subsection (c)(1)
or (c)(2), whichever is met first.
(e) At any time during the Plan Year, the Company may
make an estimate of the amount of Matching Contributions
on behalf of Highly Compensated Employees that will be
permitted under this section for the year. If the
Company determines in its sole discretion that
reductions are necessary to assure that at least one of
the requirements in subsection (c) are satisfied, the
Company may take written action amending Sec. 5.2 to
reduce or eliminate Matching Contributions for Highly
Compensated Employees with respect to Certified Earnings
to be paid from the date such action is adopted to the
end of the Plan Year.
(f)If contributions with respect to a Highly Compensated
Employee are reduced pursuant to subsection (d), the
Excess Aggregate Contributions shall be treated as
follows:
(1)For purposes of this subsection, "Excess Aggregate
Contributions" mean the amount by which Matching
Contributions must be reduced under subsection (d).
(2)Excess Matching Contributions (adjusted for income
or losses allocable thereto) shall be distributed to
Participants on whose behalf such excess
contributions were made for the Plan Year no later
than the last day of the following Plan Year.
Furthermore, the Company shall attempt to distribute
such amount by the 15th day of the third month
following the Plan Year for which the excess
contributions were made to avoid the imposition on
the Participating Employers of an excise tax under
Code section 4979.
(3) Income or losses allocable to Excess
Aggregate Contributions shall be determined in the
same manner specified for Excess Before Tax
Contributions under Sec. 5.4(f)(3).
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PAGE 23
(g)For purposes of subsection (a), the contribution
percentage of a Highly Compensated Employee who is a
more than 5-percent owner or who is among the 10 highest
paid Highly Compensated Employees and any Family Members
of such a person shall be determined in the same manner
specified for determining the deferral percentage under
Sec. 5.4(g)(1). If subsection (d) requires reduction of
the contributions by or on behalf of a Highly
Compensated Participant who is subject to family
aggregation, reductions of contributions for that family
group shall be determined in the same manner specified
for reducing Before Tax Contributions under
Sec. 5.4(g)(2).
(h)The contribution percentage for any Participant who is a
Highly Compensated Employee for the Plan Year, and who
is eligible to make nondeductible employee contributions
or to receive matching contributions under two or more
plans described in Code section 401(a) that are
maintained by the Participating Employers or any
Affiliate, shall be determined as if all such
contributions were made under a single arrangement
unless mandatorily disaggregated pursuant to regulations
under Code section 401(m).
(i) If two or more plans maintained by the
Participating Employers or Affiliates are treated as one
plan for purposes of satisfying the eligibility
requirements of Code section 410(b), those plans must be
treated as one plan for purposes of applying the
provisions of this section unless mandatorily
disaggregated pursuant to regulations under Code section
401(m).
(j)Notwithstanding the foregoing, if neither subparagraph
(c)(1) of this section nor Sec. 5.4(c)(1) was satisfied,
the requirements set forth in Sec. 5.7 must also be
satisfied.
SEC. 5.7 MULTIPLE USE OF THE ALTERNATIVE
LIMITATIONSEC. 5.7 MULTIPLE USE OF THE ALTERNATIVE LIMITATIONS.
If neither Sec. 5.4(c)(1) nor Sec. 5.6(c)(1) was satisfied, the
following additional requirements must also be satisfied:
(a) The sum of the following two amounts must not
exceed the greater of the limit determined under
subsection (b) or the limit determined under subsection
(c):
(1)The average deferral percentage for Highly
Compensated Employees (determined under Sec. 5.4(b)
following any adjustments required by Sec. 5.4).
(2)The average contribution percentage for Highly
Compensated Employees (determined under Sec. 5.6(b)
following any adjustments required by Sec. 5.6).
(b) The limit under this subsection is the sum of the
following amounts:
(1) 1.25 multiplied by the greater of:
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PAGE 24
(A)The average deferral percentage for Non-Highly
Compensated Employees (determined under
Sec. 5.4(b) following any adjustments required by
Sec. 5.4), or
(B)The average contribution percentage for
Non-Highly Compensated Employees (determined
under Sec. 5.6(b) following any adjustments
required by Sec. 5.6).
(2) Two percentage points plus the lesser of:
(A)The average deferral percentage for Non-Highly
Compensated Employees, or
(B)The average contribution percentage for
Non-Highly Compensated Employees.
Notwithstanding the foregoing, the amount under this
paragraph (2) cannot exceed the lesser of (A) or (B)
above, multiplied by two, or such other limit as may
be prescribed by Treasury Regulations.
(c)The limit under this subsection (c) is the amount that
would be determined under subsection (b) by:
(1)Substituting "lesser" for "greater" in paragraph (1)
of subsection (b), and
(2) Substituting "greater" for "lesser" each place
that word appears in paragraph (2) of subsection (b).
(d) If the amount determined under subsection (a)
exceeds the greater of the limits determined under
subsections (b) and (c), an additional amount must be
treated as Excess Before Tax Contributions and
distributed under Sec. 5.4. In addition, any Matching
Contributions attributable to those Before Tax
Contributions shall be treated as forfeited and shall be
applied as a credit against future contributions from
the Participating Employers. Appropriate adjustments
under this subsection must be made pursuant to Treasury
regulations until the sum of the average deferral
percentage and average contribution percentage for
Highly Compensated Employees is equal to the greater of
the limits determined under subsections (b) and (c).
SEC. 5.8 TIME OF CONTRIBUTIONSEC. 5.8 TIME OF
CONTRIBUTIONS. In addition to the requirements of Sec. 5.3,
Before Tax Contributions and Matching contributions by a
Participating Employer for a Plan Year shall be paid to the
Trustee no later than the time (including extensions thereof)
prescribed by law for filing the employer's federal income tax
return for the tax year in which the Plan Year ends. Before Tax
Contributions and any other contributions taken into account
under Sec. 5.4(a)(1) shall be paid to the Trustee no later than
12 months following the end of the Plan Year, if earlier. In
addition, Before Tax Contributions or Matching Contributions
shall be paid to the Trustee by any earlier date that may be
specified in Treasury or Department of Labor regulations.
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PAGE 25
SEC. 5.9 LIMITATIONS ON
CONTRIBUTIONSEC. 5.9 LIMITATIONS ON CONTRIBUTIONS. In no event
shall the amount of a Participating Employer's contribution
under this Article for any Plan Year exceed the lesser of:
(a)The maximum amount allowable as a deduction in computing
its taxable income for that Plan Year for federal income
tax purposes.
(b)The aggregate amount of the contributions by such
Participating Employer that may be allocated to Accounts
of Participants under the provisions of Article VI.
ARTICLE VI
LIMITATION ON ALLOCATIONSRTICLE VI
LIMITATION ON ALLOCATIONS
SEC. 6.1 LIMITATION ON ALLOCATIONSEC. 6.1 LIMITATION
ON ALLOCATIONS. Notwithstanding any provisions of the Plan to
the contrary, allocations to Participants under the Plan shall
not exceed the maximum amount permitted under Code section 415.
For purposes of the preceding sentence, the following rules
shall apply unless otherwise provided in Code section 415:
(a)The Annual Additions with respect to a Participant for
any Plan Year shall not exceed the lesser of:
(1)$30,000, or, if greater, 25% of the defined benefit
dollar limitation set forth in Code section
415(b)(1)(A) as in effect for the Plan Year.
(2)25% of the Compensation of such Participant for such
Plan Year.
(b)If a Participant is also a participant in one or more
other defined contribution plans maintained by a
Participating Employer or an Affiliate, and if the
amount of employer contributions and forfeitures
otherwise allocated to the Participant for a Plan Year
must be reduced to comply with the limitations under
Code section 415, such allocations under this Plan and
each of such other plans shall be reduced pro rata in
the sequence specified in subsection (c), and pro rata
within each category within that sequence, to the extent
necessary to comply with said limitations, except that
reductions to the extent necessary shall be made in
allocations under profit sharing plans and stock bonus
plans before any reductions are made under money
purchase plans.
(c)If for any Plan Year the limitation described in
subsection (a) would otherwise be exceeded by
contributions to this Plan with respect to any
Participant (after application of subsection (b)), the
Participant's Annual Additions shall be adjusted in the
following sequence, but only to the extent necessary to
reduce Annual Additions to the level permitted in
subsection (a):
(1)The Participant's after-tax voluntary employee
contributions for the Plan Year, if any, shall be
refunded to the Participant
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PAGE 26
during the Plan Year or as soon as reasonably
possible following the end of the Plan Year.
(2)The Participant's Before Tax Contributions for the
Plan Year, if any, shall be reduced, and that amount
shall be refunded to the Participant.
(3)If, after the adjustments in paragraphs (1) and (2)
there is an excess amount with respect to a
Participant for a Plan Year, such excess amount
shall be held unallocated in a suspense account.
The suspense account will be applied to reduce
future employer contributions for all Participants
in the current Plan Year, the next Plan Year, and in
each succeeding Plan Year, if necessary. The
suspense account will participate in the allocation
of the investment gains and losses of the Fund and
the value of such account will be considered in
valuing other Accounts under the Plan.
(4)Any amounts refunded under paragraphs (1) or (2)
shall be disregarded for purposes of applying the
limits under Sec. 5.4, Sec. 5.5 and Sec. 5.6.
(d)If the Participant is also a participant in one or more
defined benefit plans maintained by a Participating
Employer or an Affiliate, the sum of the Participant's
defined benefit plan fraction and defined contribution
plan fraction, determined according to Code section
415(e), for any Plan Year may not exceed 1.0. If the
sum of a Participant's defined benefit fraction and
defined contribution fraction would otherwise exceed 1.0
for any Plan Year, the benefits provided under the
defined benefit plan or plans shall be reduced to the
extent necessary to reduce the sum of the fractions to
1.0.
(e)For purposes of this section, "Annual Additions" means
the sum of the following amounts allocated to a
Participant for a Plan Year under this Plan and all
other defined contribution plans maintained by a
Participating Employer or an Affiliate in which he or
she participates:
(1)Employer contributions, including Before Tax
Contributions made under this Plan. Excess Before
Tax Contributions, and Excess Aggregate
Contributions which are distributed under the
provisions of Article V are included in Annual
Additions, but Excess Deferrals which are
distributed under Sec. 5.5 are not included in
Annual Additions.
(2)Forfeitures, if any.
(3)Voluntary non-deductible contributions, if any.
(4)Amounts attributable to medical benefits as
described in Code sections 415(1)(2) and 419A(d)(2).
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PAGE 27
An Annual Addition with respect to a Participant's
Accounts shall be deemed credited thereto with respect
to a Plan Year if it is allocated to the Participant's
Accounts under the terms of the Plan as of any date
within such Plan Year.
(f)For purposes of this section, "Compensation" means an
employee's earned income, wages, salaries, fees for
professional services and other amounts received
(without regard to whether or not an amount is paid in
cash) for personal services actually rendered in the
course of employment with the Participating Employers
and Affiliates to the extent that the amounts are
includable in gross income (including, but not limited
to, commissions, compensation for services on the basis
of a percentage of profits, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances
under a nonaccountable plan described in Treasury
Regulation 1.62-2(c)), subject to the following:
(1)Compensation excludes the Before Tax Contributions
to this Plan, any elective salary reduction
contributions to any other plan which are not
includable in the gross income of the employee under
Code sections 125, 401(k), 402(h)(1)(B) or 403(b),
any other employer contributions to a plan of
deferred compensation which are not includable in
the employee's gross income for the taxable year in
which contributed, any distributions from a plan of
deferred compensation, and any other amounts which
receive special tax benefits. However, any amounts
received by an employee pursuant to an unfunded
non-qualified plan of deferred compensation may be
considered as Compensation in the year such amounts
are includable in the employee's gross income.
(2)Compensation excludes amounts realized from the
exercise of a non-qualified stock option, or when
restricted stock (or property) either becomes
transferable or is no longer subject to a
substantial risk of forfeiture.
ARTICLE VII
INDIVIDUAL ACCOUNTSRTICLE VII
INDIVIDUAL ACCOUNTS
SEC. 7.1 ACCOUNTS FOR PARTICIPANTSEC. 7.1 ACCOUNTS
FOR PARTICIPANTS. The following Accounts may be established
under the Plan for a Participant:
(a)A Before Tax Account shall be established for each
Participant to which Before Tax Contributions shall be
credited.
(b)A Matching Account shall be established for each
Participant to which Matching Contributions shall be
credited.
(c)A Rollover Account shall be established for each
Participant who makes a Rollover Contribution, as
provided by Sec. 7.7.
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PAGE 28
(d) A Transfer Account shall be established for each
Participant with respect to whom a transfer is received
pursuant to Sec. 7.8.
(e)A Predecessor Plan Account shall be established for each
Participant with respect to whom a transfer is received
from a Predecessor Plan as provided in Article XVI.
More than one of any of the above types of Accounts may be
established if required by the Plan or if considered advisable
by the Company in the administration of the Plan. If the
Company elects to include any Matching Contributions in the
calculation of the deferral percentage under Sec. 5.4(a)(1),
separate Matching Accounts must be established for such
contributions. Except as expressly provided herein to the
contrary, the Fund shall be held and invested on a commingled
basis, Accounts shall be for bookkeeping purposes only, and the
establishment of Accounts shall not require any segregation of
Fund assets.
SEC. 7.2 INVESTMENT OF ACCOUNTSEC. 7.2 INVESTMENT OF
ACCOUNTS. Amounts allocated to each Participant's Accounts
shall be invested primarily in shares of ADM Stock; provided,
however, that Predecessor Plan Accounts shall be invested in
accordance with Article XVI. Such shares may be acquired by the
Trustee directly from Participating Employers or Affiliates
through contributions in kind. Other shares acquired for the
Fund shall be purchased by the Trustee through brokers, from
securities dealers, or by private purchase at such prices and in
such amounts as the Trustee may determine. Part or all of the
amount allocated to a Participant's Accounts may be held in cash
or short term investments pending investment in shares of ADM
Stock.
SEC. 7.3 VALUATION OF ACCOUNTSEC. 7.3 VALUATION OF
ACCOUNTS. As of each Valuation Date, each Account shall be
adjusted to reflect contributions, dividends and other income,
distributions, withdrawals, and all other transactions occurring
since the next preceding Valuation Date, as follows:
(a)From the number of shares of ADM Stock held in an
Account (other than a Predecessor Plan Account) as of
the next preceding Valuation Date, there shall be
subtracted any shares subsequently distributed or
withdrawn.
(b)The Account as adjusted in subsection (a) shall be
further adjusted to reflect any dividends or other
income. Cash dividends shall be reinvested in ADM stock
at the then existing market price. Shares acquired by
reinvestment of cash dividends will be allocated at the
end of the quarter and will not be allocated with
respect to shares distributed during that quarter.
Shares of ADM Stock attributable to stock dividends or
stock splits will be allocated to Accounts on the date
they occur, so that shares distributed during the
quarter will be adjusted to reflect any stock splits or
stock dividends occurring prior to the distribution
date.
(c)Any shares of ADM Stock contributed to the Account since
the preceding Valuation Date shall be added to the
Account.
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PAGE 29
(d) A Predecessor Plan Account shall be valued as
provided in Article XVI.
SEC. 7.4 CERTIFICATESEC. 7.4 CERTIFICATES. The
Company may cause to be issued from time to time benefit
statements advising Participants of the status of their
interests in the Fund, but shall not be required to do so and
the issuance of such benefit statements shall not in any way
alter or affect the rights of Participants with respect to the
Fund.
SEC. 7.5 VOTING AND OTHER RIGHTS REGARDING ADM
STOCKEC. 7.5 VOTING AND OTHER RIGHTS REGARDING ADM STOCK. Not
less than 30 days prior to any meeting of shareholders of the
Company, the Company shall cause to be sent to Participants who
have shares of ADM Stock credited to their Accounts the proxy
materials which are sent to shareholders of record of the
Company. Each such Participant shall have the right to instruct
the Trustee as to the method of voting on the propositions
submitted to shareholders, in accordance with the following:
(a) Each such Participant shall have a number of votes
equal to the number of full and fractional shares
credited to his Accounts as of the date the notice is
given. To be effective, the Participant's instructions
must be received by the Trustee by a deadline
established in advance by the Trustee. The Trustee
shall tabulate the instructions by the deadline and
shall determine the number of votes for and against each
proposal. The Trustee shall then vote the shares
allocated to Participants' Accounts in accordance with
the directions received. In cases where instructions
are received with respect to voting of fractional
shares, the Trustee shall vote the combined fractional
shares to the extent possible to reflect the direction
of Participants holding fractional shares.
(b) If a Participant does not direct the Trustee in
whole or in part with respect to voting of ADM Stock
credited to the Participant's Accounts, such voting
rights shall be exercised only to the extent directed by
the Participant.
(c) Each Participant may direct the exercise of rights
other than voting rights with respect to shares
allocated to his Accounts. Said directions shall be
given pursuant to procedures adopted by the Company.
(d) Participants shall have no right to direct voting
of or exercise of other rights with respect to
unallocated shares of ADM Stock. Such shares shall be
voted by the Trustee.
SEC. 7.6 TENDER OR EXCHANGE OFFERS REGARDING ADM
STOCKEC. 7.6 TENDER OR EXCHANGE OFFERS REGARDING ADM STOCK. As
soon as practicable after the commencement of a tender or
exchange offer (an "Offer") for shares of ADM Stock, the Company
shall use its best efforts to cause each Participant to be
advised in writing of the terms of the Offer, and to be provided
with forms by which the Participant may instruct the Trustee, or
revoke such instruction, to tender shares of ADM Stock credited
to his Accounts, to the extent permitted under the terms of such
Offer. The Trustee shall follow the directions of each
Participant. The Trustee shall 29
PAGE 30
decide whether or not to tender shares for which no instructions
are received. In advising participants of the terms of the
Offer, the Company may include statements from the Board setting
forth its position with
respect to the Offer. The giving of instructions by a
Participant to the Trustee to tender shares and the tender
thereof shall not be deemed a withdrawal or suspension from the
Plan or a forfeiture of any portion of such Participant's
interest in the Plan solely by reason of the giving of such
instructions and the Trustee's compliance therewith. Any
securities received by the Trustee as a result of a tender of
shares of ADM Stock shall be held, and any cash so received
shall be invested in short-term investments, for the account of
the Participant with respect to whom shares were tendered
pending any reinvestment by the Trustee, as it may deem
appropriate, consistent with the purposes of the Plan.
SEC. 7.7 ROLLOVER ACCOUNTSEC. 7.7 ROLLOVER ACCOUNTS.
A Qualified Employee who receives a distribution from a plan
described in subsection (a) below may transfer to the Fund an
amount that constitutes a Rollover Contribution.
Notwithstanding any provisions of the Plan to the contrary, the
following shall apply with respect to a Rollover Contribution:
(a) If (i) the Company or an Affiliate acquires the
assets of another employer and certain employees of that
employer become Qualified Employees hereunder, and (ii)
said Qualified Employees receive a total distribution
from a qualified plan described in Code section 401(a)
maintained by the previous employer because of a
complete or partial termination of said plan with
respect to the Qualified Employees, then any such
Qualified Employee may elect to make a Rollover
Contribution of such distribution if the previous
employer is listed in this subsection (a). As of July
1, 1991, the only such previous employer is Dennis E.
Roby & Associates, Inc.
(b) No Rollover Contribution shall be accepted by the
Fund unless made no later than ten working days after
the plan distribution was received by the Qualified
Employee.
(c) A Rollover Account shall be established for each
employee who makes a Rollover Contribution. From the
date the assets of the Rollover Contribution are
transferred to the Fund through the first Valuation Date
following such transfer, the Rollover Account shall be
valued at the fair market value of said assets on the
date of such transfer.
(d) A Rollover Account shall be treated in all respects
the same as a Before Tax Account except as provided in
(c) above, and any references in the Plan to a Before
Tax Account shall apply equally to a Rollover Account,
except that no employer or employee contributions shall
ever be added to a Rollover Account.
(e) The employee shall be treated the same as a
Participant hereunder from the time of the transfer, but
shall not actually be a Participant and shall not be
eligible to receive an allocation of employer
contributions or to make employee contributions until he
or she has satisfied the requirements of Article IV.
(f) For purposes of this section, "Rollover
Contribution" means a contribution of an amount which
may be rolled over to this Plan
pursuant to Code sections 402(c), 403(a)(4),
408(d)(3), or any other provision of the Code which may
permit rollovers to this Plan from time to time.
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ARTICLE VIII
DESIGNATION OF BENEFICIARYRTICLE VIII
DESIGNATION OF BENEFICIARY
SEC. 8.1 PERSONS ELIGIBLE TO
DESIGNATEEC. 8.1 PERSONS ELIGIBLE TO DESIGNATE. Any
Participant may designate a Beneficiary to receive any amount
payable from the Fund as a result of the Participant's death,
provided that the Beneficiary survives the Participant. The
Beneficiary may be one or more persons, natural or otherwise. By
way of illustration, but not by way of limitation, the
Beneficiary may be an individual, trustee, executor, or
administrator. A Participant may also change or revoke a
designation previously made, without the consent of any
Beneficiary named therein.
SEC. 8.2 SPECIAL REQUIREMENTS FOR MARRIED
PARTICIPANTSEC. 8.2 SPECIAL REQUIREMENTS FOR MARRIED
PARTICIPANTS. Notwithstanding the provisions of Sec. 8.1, if a
Participant is married at the time of his or her death, the
Beneficiary shall be the Participant's spouse unless the spouse
has consented in writing to the designation of a different
Beneficiary, the spouse's consent acknowledges the effect of
such designation, and the spouse's consent is witnessed by a
representative of the Plan or a notary public. Such consent
shall be deemed to have been obtained if it is established to
the satisfaction of the Company that such consent cannot be
obtained because there is no spouse, because the spouse cannot
be located, or because of such other circumstances as may be
prescribed by federal regulations. Any consent by a spouse
shall be irrevocable. Any designation of a Beneficiary which
has received spousal consent may be changed (other than by being
revoked) without spousal consent only if the consent by the
spouse expressly permits subsequent designations by the
Participant without any requirement for further consent by the
spouse. Any such consent shall be valid only with respect to
the spouse who signed the consent, or in the case of a deemed
consent, the designated spouse.
SEC. 8.3 FORM AND METHOD OF DESIGNATIONEC. 8.3 FORM
AND METHOD OF DESIGNATION. Any designation or a revocation of a
prior designation of Beneficiary shall be in writing on a form
acceptable to the Company and shall be filed with the Company.
The Company and all other parties involved in making payment to
a Beneficiary may rely on the latest Beneficiary designation on
file with the Company at the time of payment or may make payment
pursuant to Sec. 8.4 if an effective designation is not on file,
shall be fully protected in doing so, and shall have no
liability whatsoever to any person making claim for such payment
under a subsequently filed designation of Beneficiary or for any
other reason.
SEC. 8.4 NO EFFECTIVE DESIGNATIONEC. 8.4 NO
EFFECTIVE DESIGNATION. If there is not on file with the Company
an effective designation of Beneficiary by a deceased
Participant, the Beneficiary shall be the person or persons
surviving the Participant in the first of the following classes
in which there is a
31
PAGE 32
survivor, share and share alike:
(a) The Participant's spouse.
(b)The Participant's children, except that if any of the
Participant's children predecease the Participant but
leave issue surviving the Participant, such issue shall
take by right of representation the share their parent
would have taken if living.
(c) The Participant's parents.
(d) The Participant's brothers and sisters.
(e) The Participant's estate.
Determination of the identity of the Beneficiary in each case
shall be made by the Company.
SEC. 8.5 SUCCESSOR BENEFICIARYEC. 8.5 SUCCESSOR
BENEFICIARY. If a Beneficiary who survives the Participant
subsequently dies before receiving all payments to which the
Beneficiary was entitled, the successor Beneficiary, determined
in accordance with the provisions of this section, shall be
entitled to the balance of any remaining payments due. A
Beneficiary who is not the surviving spouse of the Participant
may not designate a successor Beneficiary. A Beneficiary who is
the surviving spouse may designate a successor Beneficiary only
if the Participant specifically authorized such designations on
the Participant's Beneficiary designation form. If a
Beneficiary is permitted to designate a successor Beneficiary,
each such designation shall be made according to the same rules
(other than Sec. 8.2) applicable to designations by
Participants. If a Beneficiary is not permitted to designate a
successor Beneficiary, or is permitted to do so but fails to
make such a designation, the balance of any payments remaining
due will be payable to a contingent Beneficiary if the
Participant's Beneficiary designation so specifies, and
otherwise to the personal representative (executor or
administrator) of the deceased Beneficiary.
SEC. 8.6 INSURANCE CONTRACTEC. 8.6 INSURANCE
CONTRACT. Notwithstanding the foregoing provisions of this
Article VIII, as to benefits payable under a contract issued by
an insurance company, said contract shall govern the designation
of Beneficiary entitled to benefits thereunder except to the
extent the contract is inconsistent with the provisions of
Sec. 8.2 or Sec. 10.1.
ARTICLE IX
BENEFIT REQUIREMENTSRTICLE IX
BENEFIT REQUIREMENTS
SEC. 9.1 BENEFIT ON TERMINATION OF
EMPLOYMENTEC. 9.1 BENEFIT ON TERMINATION OF EMPLOYMENT. If a
Participant's Termination of Employment occurs (for any reason
other than death), the Participant shall be 100% vested and
shall be entitled to a benefit equal to (i) the number of shares
of ADM stock allocated to his or her Accounts (other than a
Predecessor Plan Account), and (ii) the value of his or her
Predecessor Plan Accounts, if any, both determined as of the
Valuation Date coincident with or next following the Termination
of Employment. The Participant shall also be entitled to an
additional benefit equal to the number of shares of ADM Stock
(if any) allocated to his or her Accounts after the
Participant's Termination of Employment. The benefit shall be
paid at the times and in the manner determined under Article X.
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PAGE 33
SEC. 9.2 DEATHEC. 9.2 DEATH. If a Participant's
Termination of Employment is the result of death, his or her
Beneficiary shall be entitled to a benefit equal to (i) the
number of shares of ADM Stock allocated to the Participant's
Accounts (other than a Predecessor Plan Account), and (ii) the
value of the Participant's Predecessor Plan Accounts, if any,
both determined as of the Valuation Date coincident with or next
following the date of death. The Beneficiary shall also be
entitled to an additional benefit equal to the number of shares
of ADM Stock (if any) allocated to the Participant's Accounts
after the Participant's death. Such benefit shall be paid at
the times and in the manner determined under Article X. If a
Participant's death occurs after his or her Termination of
Employment, distribution of the balance of the Participant's
Accounts shall be made to the Beneficiary in accordance with the
provisions of Article X.
SEC. 9.3 WITHDRAWALS BEFORE TERMINATION OF
EMPLOYMENTEC. 9.3 WITHDRAWALS BEFORE TERMINATION OF EMPLOYMENT.
A Participant may request a cash withdrawal from his or her
Before Tax Account, Matching Account, and Rollover Account at
any time prior to the date benefits first become payable to the
Participant under Sec. 9.1 pursuant to the following:
(a)Until the Participant reaches age 59 1/2, a withdrawal may
be made from such Accounts only to meet a financial
hardship; provided, however, that no hardship
withdrawals can be made from a Matching Account.
(1) A hardship withdrawal will be permitted
only if the Company determines that both of the
following requirements are met:
(A)The distribution must be made on account of one
of the following reasons:
(i)Expenses for medical care described in
section 213(d) of the Code incurred by the
Participant, the Participant's spouse, or any
dependents of the Participant, as defined in
section 152 of the Code, or expenses
necessary for any of those persons to obtain
such medical care.
(ii) Costs directly related to the purchase
of the principal residence of the Participant
(excluding mortgage payments).
(iii)Payment of tuition for the next semester
or quarter of post-secondary education for
the Participant, or for his or her spouse,
children or dependents, or commencing
January 1, 1992, tuition and related
educational fees for the next 12 months of
such education.
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PAGE 34
(iv) The need to prevent the eviction of the
Participant from his or her principal
residence or foreclosure on the mortgage of
the Participant's principal residence.
(v) Any other immediate and
heavy financial need which the Company
determines, in accordance with rules applied
in a uniform and non-discriminatory manner,
satisfies the requirements of Treasury
Regulation 1.401(k)-1(d)(2).
(B)All of the following requirements must be
satisfied:
(i) The amount of the distribution cannot
exceed the amount of the immediate and heavy
financial need of the Participant. The
Company may reasonably rely on the
Participant's representation as to that
amount. However, the amount of the
distribution may include any amounts
determined by the Company to be necessary to
pay any federal, state or local income taxes
or penalties reasonably expected to result
from the distribution.
(ii) The Participant must have obtained all
distributions, other than hardship
distributions, and all nontaxable loans
currently available under all plans
maintained by the Participating Employers or
any Affiliate.
(iii)The Participant's elective contributions
and employee contributions under the Plan and
all other qualified and nonqualified plans of
deferred compensation maintained by the
Participating Employers or any Affiliate will
be suspended pursuant to the terms of the
plan or an otherwise legally enforceable
agreement for at least 12 months after the
receipt of the hardship distribution.
(iv) For the calendar year immediately
following the calendar year of the hardship
distribution, the Participant may not make
contributions under all plans maintained by
the Participating Employers or any Affiliate
in excess of the applicable limit under
section 402(g) of the Code for such next
calendar year less the amount of the
Participant's elective contributions for the
calendar year of the hardship distribution.
(v) Notwithstanding the foregoing provisions
of this subparagraph (B), this subparagraph
(B) will be satisfied if the IRS issues a
revenue ruling, notice, or other document of
general applicability which establishes an
alternative method under which
distributions will be deemed to be necessary
to satisfy an immediate and heavy financial
need and all of the requirements of such
alternative method are met.
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(2) With respect to any such hardship
withdrawal from a Participant's Before Tax Account,
earnings credited to the Before Tax Account after
December 31, 1988 cannot be withdrawn under this
subsection (a).
(b)After the Participant reaches age 59 1/2, a withdrawal may
be made from any of the Accounts (including a Matching
Account) for any reason.
(c)The amount withdrawn shall be paid to the Participant in
cash; provided, however, that the Participant may elect
to receive the withdrawal in the form of whole shares of
ADM Stock (with cash in lieu of any fractional share).
Any cash distribution will be reduced to reflect any
brokerage fees incurred with respect to the sale of
stock.
(d) No withdrawal may be made in an amount having a
value less than the lesser of (i) $1,000 or (ii) the
total amount available for such withdrawals, if less
than $1,000.
(e)Requests for withdrawals under this section shall be
made pursuant to applicable rules and regulations
adopted by the Company which are uniform and
non-discriminatory as to all Participants and shall be
submitted in writing to the Company on such form as the
Company prescribes for this purpose. The Company shall
determine whether the requirements of this section have
been met.
(f)Withdrawals shall be permitted from a Predecessor Plan
Account as provided in Article XVI.
ARTICLE X
DISTRIBUTION OF BENEFITSRTICLE X
DISTRIBUTION OF BENEFITS
SEC. 10.1 TIME AND METHOD OF PAYMENTEC. 10.1 TIME
AND METHOD OF PAYMENT. The benefit to which a Participant or
Beneficiary may become entitled under Article IX (other than
with respect to a Predecessor Plan Account) shall be distributed
to that individual at such time after the date as of which the
Participant or Beneficiary becomes entitled to a benefit payment
as he or she elects, subject to the following:
(a) Unless the Participant elects otherwise,
distribution must be made no later than the 60th day
after the close of the Plan Year in which the
Participant reaches Normal Retirement Age or in which
the Participant's Termination of Employment occurs,
whichever is later; provided, however, that if the
amount of the payment to be made cannot be determined by
the later of the aforesaid dates, a payment
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retroactive to such date may be made no later than 60
days after the earliest date on which the amount of such
payment can be ascertained. For purposes of this
subsection, the failure of a Participant to elect to
receive a distribution shall be deemed to be an election
to defer distribution of the benefit.
(b) If the Participant's Termination of Employment
occurs at a time when the Participant is either entitled
to an immediate pension under the ADM Pension Plan for
Hourly Wage Employees or is entitled to disability
payments under the ADM Long Term Disability Plan, the
Participant may elect to receive payments under either
of the following methods:
(1) A single sum distribution not later than
April 1, following the Plan Year in which he or she
attains age 70 1/2.
(2) Installment payments, provided that the
final installment must be paid not later than
April 1 following the Plan Year in which the
Participant attains age 70 1/2. Such installments must
be in units of 100 shares or more (or the cash
equivalent thereof).
(c) If a Participant's Termination of Employment occurs
at a time before the Participant is entitled to an
immediate pension under the ADM Pension Plan for Hourly
Wage Employees and the Participant is not receiving
disability payments under the ADM Long Term Disability
Plan, then the participant may only receive a single sum
distribution of the balance credited to his or her
Accounts. The Participant may designate the time of
payment; provided, however, that the payment date may
not be later than April 1 of the Plan Year following the
Plan Year in which the Participant attains age 70 1/2.
Such a Participant may not elect installment
distributions.
(d)If the Participant dies before receiving the
distribution and before the date that the distribution
was required to occur under subsection (b) or (c), the
Participant's Accounts shall be distributed to the
Beneficiary in a single sum or installments to be
completed not later than December 31 of the year
containing the fifth anniversary of the Participant's
death.
(e) If more than one Beneficiary is entitled to
benefits following the Participant's death, the interest
of each Beneficiary shall be segregated into a separate
Account for purposes of applying this section.
(f) Notwithstanding the foregoing, if the total vested
value of the Accounts of a Participant (or a Beneficiary
following the Participant's death) is $3,500 or less on
the Valuation Date coincident with or immediately
following the date the Participant's Termination of
Employment or death occurs, a single-sum distribution
shall be made to the Participant (or Beneficiary) as of
the earliest date permitted by the Plan. However, this
subsection shall not apply to a Participant if the total
vested
value of the Participant's Accounts exceeded $3,500 at
the time any previous distribution was made to the
Participant.
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(g) Notwithstanding any provision of the Plan to the
contrary, distributions under this section shall be made
in accordance with the requirements of Code section
401(a)(9), including the incidental death benefit
requirements of Code section 401(a)(9)(G) and the
regulations thereunder. No distribution option
otherwise permitted under this Plan will be available to
a Participant or Beneficiary if such distribution option
does not meet the requirements of Code section
401(a)(9), including subparagraph (G) thereof.
(h) In accordance with subsection (g), if a Participant
continues working for a Participating Employer or
Affiliate after the Plan Year in which he attains age
70 1/2, benefit payments shall commence not later than
April 1 following the Plan Year in which the Participant
attains age 70 1/2. The amount distributed each year to
such an employee shall be an amount elected by the
employee which shall not be less than the amount
required to satisfy the requirements of Code section
401(a)(9).
SEC. 10.2 FORM OF DISTRIBUTIONEC. 10.2 FORM OF
DISTRIBUTION. Distributions shall be made in accordance with
the following:
(a) Distributions under Sec. 9.3, Sec. 10.1(b),
Sec. 10.1(d), or Sec. 10.1(h) shall be in cash or in
shares of ADM Stock, as elected by the recipient. Any
cash distribution will be reduced to reflect any
brokerage fees incurred with respect to the sale of
stock.
(b) Distributions under Sec. 10.1(c) and Sec. 10.1(f)
shall be made in whole shares of ADM Stock, and the
remaining balance, if any, shall be paid in cash.
(c) Distributions with respect to a Predecessor Plan
Account shall be paid in accordance with Article XVI.
(d) With respect to any distribution to be made after
December 31, 1992, the Participant may elect to have the
distribution made by the Trustee in the form of a direct
transfer rollover contribution for the benefit of the
Participant to an individual retirement account or
annuity described in Code section 408 or to another
qualified plan described in code section 401(a).
However, no such transfer shall be made if the
distribution is part of a series of installments payable
over a period of ten years or more, or if the
distribution is required in order to satisfy Code
section 401(a)(9). The Participant shall provide the
Trustee with the information necessary to accomplish the
transfer in such form as the Company or the Trustee may
require. Transfers made in accordance with the
Participant's instructions shall constitute full
settlement of the Plan's liability with respect to the
amount so transferred, and the Plan, the Trustee, and
the Company shall have no further liability with respect
to such amounts. Transfers under this subsection shall
be made in accordance with Code section 401(a)(31) and
the regulations thereunder.
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SEC. 10.3 ACCOUNTING FOLLOWING TERMINATION OF
EMPLOYMENTEC. 10.3 ACCOUNTING FOLLOWING TERMINATION OF
EMPLOYMENT. If distribution of all or any part of a benefit is
deferred or delayed for any reason, the undistributed Accounts
shall continue to be revalued as of each Valuation Date as
provided in Article VII. Payment shall be made as of the
Valuation Date following the date the Participant (or
Beneficiary following the Participant's death) files the request
with the Company, and shall occur within a reasonable time after
the valuation has been completed.
SEC. 10.4 REEMPLOYMENTEC. 10.4 REEMPLOYMENT. Except
where distributions are required under Sec. 10.1(h), entitlement
to a distribution from the Fund pursuant to Sec. 9.1 shall cease
upon reemployment of a Participant in a regular position by a
Participating Employer, and shall recommence in accordance with
the provisions of this Article upon the Participant's subsequent
Termination of Employment.
SEC. 10.5 SOURCE OF BENEFITSEC. 10.5 SOURCE OF
BENEFITS. All benefits to which persons become entitled
hereunder shall be provided only out of the Fund and only to the
extent that the Fund is adequate therefor. No benefits are
provided under the Plan except those expressly described herein.
Each Participant and Beneficiary assumes all risk connected with
any decrease in the market value of any assets held under the
Plan. The Participating Employers do not in any way guarantee
the Fund against any loss or depreciation, or the payment of any
amount, that may be or become due to any person from the Fund.
SEC. 10.6 INCOMPETENT PAYEEEC. 10.6 INCOMPETENT
PAYEE. If in the opinion of the Company a person entitled to
payments hereunder is disabled from caring for his or her
affairs because of mental or physical condition, or age, payment
due such person may be made to such person's guardian,
conservator, or other legal personal representative upon
furnishing the Company with evidence satisfactory to the Company
of such status. Prior to the furnishing of such evidence, the
Company may cause payments due the person under disability to be
made, for such person's use and benefit, to any person or
institution then in the opinion of the Company caring for or
maintaining the person under disability. The Company shall have
no liability with respect to payments so made. The Company
shall have no duty to make inquiry as to the competence of any
person entitled to receive payments hereunder.
SEC. 10.7 BENEFITS MAY NOT BE ASSIGNED OR
ALIENATEDEC. 10.7 BENEFITS MAY NOT BE ASSIGNED OR ALIENATED.
Except as otherwise expressly permitted by the Plan or required
by law, the interests of persons entitled to benefits under the
Plan may not in any manner whatsoever be assigned or alienated,
whether voluntarily or involuntarily, or directly or indirectly.
However, the Plan shall comply with the provisions of any court
order which the Company determines is a qualified domestic
relations order as defined in Code section 414(p). Any expenses
relating to review or administration of a domestic relations
order may be charged against the Accounts of the Participant
and/or the alternate payee. 38
PAGE 39
Notwithstanding any provisions in the Plan to the contrary, an
individual who is entitled to payments from the Plan as an
"alternate payee" pursuant to a qualified domestic relations
order may receive a lump sum payment from the Plan as soon as
administratively feasible after the Company determines that the
order is a qualified domestic relations order, unless the order
specifically provides for payment to be made at a later time;
provided, however, that if the order assigns an interest in a
Predecessor Plan Account invested in an Investment Fund pursuant
to Article XVI, payment may be delayed until after the Valuation
Date coincident with or next following the date of the Company's
determination with respect to the order.
SEC. 10.8 PAYMENT OF TAXESEC. 10.8 PAYMENT OF TAXES.
The Trustee may pay any estate, inheritance, income, or other
tax, charge, or assessment attributable to any benefit payable
hereunder which in the Trustee's opinion it shall be or may be
required to pay out of such benefit. The Trustee may require,
before making any payment, such release or other document from
any taxing authority and such indemnity from the intended payee
as the Trustee shall deem necessary for its protection.
SEC. 10.9 CONDITIONS PRECEDENTEC. 10.9 CONDITIONS
PRECEDENT. No person shall be entitled to a benefit hereunder
until his or her right thereto has been finally determined by
the Company nor until the person has submitted to the Company
relevant data reasonably requested by the Company, including,
but not limited to, proof of birth or death.
SEC. 10.10 COMPANY DIRECTIONS TO
TRUSTEEEC. 10.10 COMPANY DIRECTIONS TO TRUSTEE. The Company
shall issue such written directions to the Trustee as are
necessary to accomplish distributions to the Participants and
Beneficiaries in accordance with the provisions of the Plan.
SEC. 10.11 SPECIAL DISTRIBUTION
EVENTSEC. 10.11 SPECIAL DISTRIBUTION EVENTS. Notwithstanding
anything herein to the contrary, if the agreement between the
buyer and the seller in one of the following types of
transaction provides that distributions are to be made to
affected Participants, each such Participant shall receive a
distribution of his or her Account balance as soon as
administratively feasible after either of the following events:
(a)The disposition by a Participating Employer to an
unrelated corporation of substantially all of the assets
(within the meaning of Code section 409(d)(2)) used in a
trade or business of such Participating Employer if such
Participating Employer continues to maintain this Plan
after the disposition, but only with respect to
employees who continue employment with the corporation
acquiring such assets.
(b)The disposition by a Participating Employer or by an
Affiliate to an unrelated entity of such corporation's
interest in a subsidiary (within the meaning of Code
section 409(d)(3)) which was a Participating Employer if
such corporation continues to maintain this Plan, but
only with respect to employees who continue employment
with such subsidiary.
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All distributions under this section are subject to any
applicable consent requirements under Sec. 10.1. Distributions
under this section shall be made in a single distribution of
whole shares of ADM Stock, with the remaining balance of
fractional shares, if any, paid in cash.
ARTICLE XI
FUNDRTICLE XI
FUND
SEC. 11.1 COMPOSITIONEC. 11.1 COMPOSITION. All sums
of money and all securities and other property received by the
Trustee for purposes of the Plan, together with all investments
made therewith, the proceeds thereof, and all earnings and
accumulations thereon, and the part from time to time remaining
shall constitute the "Fund". The Company may cause the Fund to
be divided into any number of parts for investment purposes or
any other purposes necessary or advisable for the proper
administration of the Plan.
SEC. 11.2 FUNDING AGENCYEC. 11.2 FUNDING AGENCY.
The Fund may be held and invested as one fund or may be divided
into any number of parts for investment purposes. Each part of
the Fund, or the entire Fund if it is not divided into parts for
investment purposes, shall be held and invested by one or more
Trustees or by an insurance company. The portion of the Fund
invested in ADM Stock shall be held under a trust agreement
between the Company and National City Bank of Minneapolis, as
Trustee, or any successor Trustee duly appointed by the Board.
The trustee or trustees or the insurance company so acting with
respect to any part of the Fund is referred to herein as the
Funding Agency with respect to such part of the Fund.
(References herein to the Trustee shall also apply to any
insurance company acting as a Funding Agency with respect to
such part of the Fund as is held by the insurance company.) The
selection and appointment of each Funding Agency shall be made
by the Company. The Company shall have the right at any time to
remove a Funding Agency and appoint a successor thereto, subject
only to the terms of any applicable trust agreement or group
annuity contract. The Company shall have the right to determine
the form and substance of each trust agreement and group annuity
contract under which any part of the Fund is held, subject only
to the requirement that they are not inconsistent with the
provisions of the Plan. Any such trust agreement may contain
provisions pursuant to which the Trustee will make investments
on direction of a third party.
SEC. 11.3 COMPENSATION AND EXPENSES OF
TRUSTEEEC. 11.3 COMPENSATION AND EXPENSES OF TRUSTEE. The
Trustee shall be entitled to receive such reasonable
compensation for its services as may be agreed upon with the
Company. The Trustee shall also be entitled to reimbursement
for all reasonable and necessary costs, expenses, and
disbursements incurred by it in the performance of its services.
Such compensation and reimbursements shall be paid from the Fund
if not paid directly by the Participating Employers in such
proportions as the Company shall determine.
SEC. 11.4 FUNDING POLICYEC. 11.4 FUNDING POLICY.
The Company shall adopt a procedure, and revise it from time to
time as it shall consider advisable, for establishing and
carrying out a funding policy and method consistent with the
objectives of the Plan and the requirements of ERISA. It shall
advise each Trustee of the funding policy in effect from time to
time.
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SEC. 11.5 SHARE REGISTRATIONEC. 11.5 SHARE
REGISTRATION. Shares of ADM Stock purchased for the Fund from
the Company shall be registered on the applicable SEC
registration form. The number of shares so registered shall be
appropriately adjusted to reflect any stock dividends, stock
splits, or other similar changes.
SEC. 11.6 NO DIVERSIONEC. 11.6 NO DIVERSION. The
Fund shall be for the exclusive purpose of providing benefits to
Participants under the Plan and their beneficiaries and
defraying reasonable expenses of administering the Plan. Such
expenses may include premiums for the bonding of Plan officials
required by ERISA. No part of the corpus or income of the Fund
may be used for, or diverted to, purposes other than for the
exclusive benefit of employees of the Participating Employers or
their beneficiaries. Notwithstanding the foregoing:
(a)If any contribution or portion thereof is made by a
Participating Employer by a mistake of fact, the Trustee
shall, upon written request of the Company, return such
contribution or portion thereof to the Participating
Employer within one year after the payment of the
contribution to the Trustee; however, earnings
attributable to such contribution or portion thereof
shall not be returned to the Participating Employer but
shall remain in the Fund, and the amount returned to the
Participating Employer shall be reduced by any losses
attributable to such contribution or portion thereof.
(b)Contributions by a Participating Employer are
conditioned upon initial qualification of the Plan as to
such Participating Employer under Code section 401(a).
If the Plan receives an adverse determination letter
from the Internal Revenue Service with respect to such
initial qualification, the Trustee shall, upon written
request of the Company, return the amount of such
contribution to the Participating Employer within one
year after the date of denial of qualification of the
Plan. For this purpose, the amount to be so returned
shall be the contributions actually made, adjusted for
the investment experience of, and any expenses
chargeable against, the portion of the Fund attributable
to the contributions actually made.
(c)Contributions by the Participating Employers are
conditioned upon the deductibility of each contribution
under Code section 404. To the extent the deduction is
disallowed, the Trustee shall return such contribution
to the Participating Employer within one year after the
disallowance of the deduction; however, earnings
attributable to such contribution (or disallowed portion
thereof) shall not be returned to the Participating
Employer but shall remain in the Fund, and the amount
returned to the Participating Employer shall be reduced
by any losses attributable to such contribution (or
disallowed portion thereof).
In the case of any such return of contribution the Company shall
cause such adjustments to be made to the Accounts of
Participants as it considers fair and equitable under the
circumstances resulting in the return of such contribution.
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ARTICLE XII
ADMINISTRATION OF PLANRTICLE XII
ADMINISTRATION OF PLAN
SEC. 12.1 ADMINISTRATION BY
COMPANYEC. 12.1 ADMINISTRATION BY COMPANY. The Company is the
"administrator" of the Plan for purposes of ERISA. Except as
expressly otherwise provided herein, the Company shall control
and manage the operation and administration of the Plan and make
all decisions and determinations incident thereto. In carrying
out its Plan responsibilities, the Company shall have
discretionary authority to construe the terms of the Plan.
Except in cases where the Plan expressly provides to the
contrary, action on behalf of the Company may be taken by any of
the following:
(a) The Board.
(b) The chief executive officer of the Company.
(c)Any person or persons, natural or otherwise, or
committee, to whom responsibilities for the operation
and administration of the Plan are allocated by the
Company, by resolution of the Board or by written
instrument executed by the chief executive officer of
the Company and filed with its permanent records, but
action of such person or persons or committee shall be
within the scope of said allocation.
SEC. 12.2 CERTAIN FIDUCIARY
PROVISIONSEC. 12.2 CERTAIN FIDUCIARY PROVISIONS. For purposes
of the Plan:
(a)Any person or group of persons may serve in more than
one fiduciary capacity with respect to the Plan.
(b)A Named Fiduciary, or a fiduciary designated by a Named
Fiduciary pursuant to the provisions of the Plan, may
employ one or more persons to render advice with regard
to any responsibility such fiduciary has under the Plan.
(c)To the extent permitted by any applicable trust
agreement or group annuity contract a Named Fiduciary
with respect to control or management of the assets of
the Plan may appoint an investment manager or managers,
as defined in ERISA, to manage (including the power to
acquire and dispose of) any assets of the Plan.
(d)At any time the Plan has more than one Named Fiduciary,
if pursuant to the Plan provisions fiduciary
responsibilities are not already allocated among such
Named Fiduciaries, the Company, by action of the Board
or its chief executive officer, may provide for such
allocation; except that such allocation shall not
include any responsibility, if any, in a trust agreement
to manage or control the assets of the Plan other than a
power under the trust agreement to appoint an investment
manager as defined in ERISA.
(e)Unless expressly prohibited in the appointment of a
Named Fiduciary which is not the Company acting as
provided in Sec. 12.1, such
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PAGE 43
Named Fiduciary by written instrument may designate a
person or persons other than such Named Fiduciary to
carry out any or all of the fiduciary responsibilities
under the Plan of such Named Fiduciary; except that such
designation shall not include any responsibility, if
any, in a trust agreement to manage or control the
assets of the Plan other than a power under the trust
agreement to appoint an investment manager as defined in
ERISA.
(f)A person who is a fiduciary with respect to the Plan,
including a Named Fiduciary, shall be recognized and
treated as a fiduciary only with respect to the
particular fiduciary functions as to which such person
has responsibility.
Each Named Fiduciary (other than the Company), each other
fiduciary, each person employed pursuant to (b) above, and each
investment manager shall be entitled to receive reasonable
compensation for services rendered, or for the reimbursement of
expenses properly and actually incurred in the performance of
their duties with the Plan and to payment therefor from the Fund
if not paid directly by the Participating Employers in such
proportions as the Company shall determine. Notwithstanding the
foregoing, no person so serving who already receives full-time
pay from any employer or association of employers whose
employees are Participants, or from an employee organization
whose members are Participants, shall receive compensation from
the Plan, except for reimbursement of expenses properly and
actually incurred.
SEC. 12.3 DISCRIMINATION
PROHIBITEDEC. 12.3 DISCRIMINATION PROHIBITED. No person or
persons in exercising discretion in the operation and
administration of the Plan shall discriminate in favor of Highly
Compensated Employees.
SEC. 12.4 EVIDENCEEC. 12.4 EVIDENCE. Evidence
required of anyone under this Plan may be by certificate,
affidavit, document, or other instrument which the person acting
in reliance thereon considers to be pertinent and reliable and
to be signed, made, or presented to the proper party.
SEC. 12.5 CORRECTION OF ERRORSEC. 12.5 CORRECTION OF
ERRORS. It is recognized that in the operation and
administration of the Plan certain mathematical and accounting
errors may be made or mistakes may arise by reason of factual
errors in information supplied to the Company or Trustee. The
Company shall have power to cause such equitable adjustments to
be made to correct for such errors as the Company in its
discretion considers appropriate. Such adjustments shall be
final and binding on all persons. Any return of a contribution
due to a mistake in fact will be subject to Sec. 11.6.
SEC. 12.6 RECORDSEC. 12.6 RECORDS. Each
Participating Employer, each fiduciary with respect to the Plan,
and each other person performing any functions in the operation
or administration of the Plan or the management or control of
the assets of the Plan shall keep such records as may be
necessary or appropriate in the discharge of their respective
functions hereunder, including records required by ERISA or any
other applicable law. Records shall be retained as long as
necessary for the proper administration of the Plan and at least
for any period required by ERISA or other applicable law.
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PAGE 44
SEC. 12.7 GENERAL FIDUCIARY STANDARDEC. 12.7 GENERAL
FIDUCIARY STANDARD. Each fiduciary shall discharge its duties
with respect to the Plan solely in the interests of Participants
and their beneficiaries and with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character
and with like aims.
SEC. 12.8 PROHIBITED TRANSACTIONSEC. 12.8 PROHIBITED
TRANSACTIONS. A fiduciary with respect to the Plan shall not
cause the Plan to engage in any prohibited transaction within
the meaning of ERISA.
SEC. 12.9 CLAIMS PROCEDUREEC. 12.9 CLAIMS PROCEDURE.
The Company shall establish a claims procedure consistent with
the requirements of ERISA. Such claims procedure shall provide
adequate notice in writing to any Participant or beneficiary
whose claim for benefits under the Plan has been denied, setting
forth the specific reasons for such denial, written in a manner
calculated to be understood by the claimant and shall afford a
reasonable opportunity to a claimant whose claim for benefits
has been denied for a full and fair review by the appropriate
Named Fiduciary of the decision denying the claim.
SEC. 12.10 BONDINGEC. 12.10 BONDING. Plan personnel
shall be bonded to the extent required by ERISA. Premiums for
such bonding may, in the sole discretion of the Company, be paid
in whole or in part from the Fund. Such premiums may also be
paid in whole or in part by the Participating Employers in such
proportions as the Company shall determine. The Company may
provide by agreement with any person that the premium for
required bonding shall be paid by such person.
SEC. 12.11 WAIVER OF NOTICEEC. 12.11 WAIVER OF
NOTICE. Any notice required hereunder may be waived by the
person entitled thereto.
SEC. 12.12 AGENT FOR LEGAL PROCESSEC. 12.12 AGENT
FOR LEGAL PROCESS. The Company shall be the agent for service
of legal process with respect to any matter concerning the Plan,
unless and until the Company designates some other person as
such agent.
SEC. 12.13 INDEMNIFICATIONEC. 12.13 INDEMNIFICATION.
In addition to any other applicable provisions for
indemnification, the Participating Employers jointly and
severally agree to indemnify and hold harmless, to the extent
permitted by law, each director, officer, and employee of the
Participating Employers against any and all liabilities, losses,
costs, or expenses (including legal fees) of whatsoever kind and
nature which may be imposed on, incurred by, or asserted against
such person at any time by reason of such person's services as a
fiduciary in connection with the Plan, but only if such person
did not act dishonestly, or in bad faith, or in willful
violation of the law or regulations under which such liability,
loss, cost, or expense arises.
ARTICLE XIII
AMENDMENT, TERMINATION, MERGERRTICLE XIII
AMENDMENT, TERMINATION, MERGER
SEC. 13.1 AMENDMENTEC. 13.1 AMENDMENT. Subject to
the non-diversion provisions of Sec. 11.6, the Company, by
action of the Board, or by written action of a person so
authorized by resolution of the Board, may amend the Plan at any
time and from time to time. No action by a person other than
the Board shall be an amendment of the Plan unless it
specifically references the Plan and states that it alters the
terms or conditions of the Plan. No amendment of the Plan shall
have the effect of changing the rights, duties, and liabilities
of any Trustee without its written consent. Also, no amendment
shall divest a Participant or Beneficiary of Accounts accrued
prior to the amendment or decrease a Participant's accrued
benefit except to the extent permitted by Code section
411(d)(6). Promptly upon adoption of any amendment to the Plan,
the Company will furnish a copy of the amendment, together with
a certificate evidencing its due adoption, as follows:
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(a) To each Trustee then acting.
(b)To any other Participating Employer who is not under
Common Control with the Company. The amendment shall be
effective as to such a Participating Employer and its
employees unless, within 30 days of receipt of the
certificate it notifies the Company and each Trustee in
writing that it is discontinuing its joint participation
in the Plan pursuant to Sec. 13.8.
SEC. 13.2 PERMANENT DISCONTINUANCE OF
CONTRIBUTIONSEC. 13.2 PERMANENT DISCONTINUANCE OF
CONTRIBUTIONS. The Company may completely discontinue
contributions in support of the Plan by all Participating
Employers. In such event, notwithstanding any provisions of the
Plan to the contrary, (i) no employee shall become a Participant
after such discontinuance, and (ii) the Accounts of each
Participant in the employ of the Participating Employers at the
time of such discontinuance shall be nonforfeitable. Subject to
the foregoing, all of the provisions of the Plan shall continue
in effect, and upon entitlement thereto distributions shall be
made in accordance with the provisions of Article X.
SEC. 13.3 TERMINATIONEC. 13.3 TERMINATION. The
Company may terminate the Plan as applicable to all
Participating Employers and their employees. After such
termination no employee shall become a Participant, and no
further contributions shall be made. The Accounts of each
Participant in the employ of the Participating Employers at the
time of such termination shall be nonforfeitable, the
Participant shall be entitled to a benefit equal to the value of
those Accounts determined as of the Valuation Date coincident
with or next following the termination of the Plan,
distributions shall be made to Participants and Beneficiaries
promptly after the termination of the Plan, but not before the
earliest date permitted under the Code and applicable
regulations, and the Plan and any related trust agreement or
group annuity contract shall continue in force for the purpose
of making such distributions.
SEC. 13.4 PARTIAL TERMINATIONEC. 13.4 PARTIAL
TERMINATION. If there is a partial termination of the Plan,
either by operation of law, by amendment of the Plan, or for any
other reason, which partial termination shall be confirmed by
the Company, the Accounts of each Participant with respect to
whom the partial termination applies shall be nonforfeitable.
Subject to the foregoing, all of the provisions of the Plan
shall continue in effect as to each such Participant, and upon
entitlement thereto distributions shall be made in accordance
with the provisions of Article X.
SEC. 13.5 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN
ASSETSEC. 13.5 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN
ASSETS. In the case of any merger or consolidation of the Plan
with any other plan, or in the case of the transfer of assets or
liabilities of the Plan to any other plan, provision shall be
made so that each Participant and Beneficiary would (if such
other plan then terminated) receive a benefit immediately after
the merger, consolidation, or transfer which is equal to or
greater than the benefit he or she would have been entitled to
receive immediately before the merger, consolidation, or
transfer (if the Plan had then
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terminated). No such merger, consolidation, or transfer shall
be effected until such statements with respect thereto, if any,
required by ERISA to be filed in advance thereof have been
filed.
SEC. 13.6 DEFERRAL OF DISTRIBUTIONSEC. 13.6 DEFERRAL
OF DISTRIBUTIONS. Notwithstanding any provisions of the Plan to
the contrary, in the case of a complete discontinuance of
contributions to the Plan or of a complete or partial
termination of the Plan, the Company or the Trustee may defer
any distribution of benefit payments to Participants and
Beneficiaries with respect to which such discontinuance or
termination applies (except for distributions which are required
to be made under Sec. 10.1(h)) until after the following have
occurred:
(a)Receipt of a final determination from the Treasury
Department or any court of competent jurisdiction
regarding the effect of such discontinuance or
termination on the qualified status of the Plan under
Code section 401(a).
(b)Appropriate adjustment of Accounts to reflect taxes,
costs, and expenses, if any, incident to such
discontinuance or termination.
SEC. 13.7 REORGANIZATIONS OF PARTICIPATING
EMPLOYERSEC. 13.7 REORGANIZATIONS OF PARTICIPATING EMPLOYERS.
In the event two or more Participating Employers are
consolidated or merged or in the event one or more Participating
Employers acquires the assets of another Participating Employer,
the Plan shall be deemed to have continued, without termination
and without a complete discontinuance of contributions, as to
all the Participating Employers involved in such reorganization
and their employees. In such event, in administering the Plan
the corporation resulting from the consolidation, the surviving
corporation in the merger, or the employer acquiring the assets
shall be considered as a continuation of all of the
Participating Employers involved in the reorganization.
SEC. 13.8 DISCONTINUANCE OF JOINT PARTICIPATION OF A
PARTICIPATING EMPLOYEREC. 13.8 DISCONTINUANCE OF JOINT
PARTICIPATION OF A PARTICIPATING EMPLOYER. The Company may
discontinue the joint participation in the Plan by another
Participating Employer. A Participating Employer which is not
under Common Control with the Company may discontinue its joint
participation in the Plan with the other Participating Employers
by action of its board of directors and on appropriate written
notice to the Company and each Trustee then acting.
(a)If the Company determines in its sole discretion to spin
off the portion of the Plan attributable to the
withdrawing employer, the Company shall cause a
determination to be made of the equitable part of the
Fund assets held on account of Participants of the
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withdrawing employer and their Beneficiaries. The
Company shall
direct the Trustee or Funding Agencies to transfer
assets representing such equitable part to a separate
fund for the plan of the withdrawing employer. Such
withdrawing employer may thereafter exercise, with
respect to such separate fund, all the rights and powers
reserved to the Company with respect to the Fund. The
plan of the withdrawing employer shall, until amended by
the withdrawing employer, continue with the same terms
as the Plan herein, except that with respect to the
separate plan of the withdrawing employer the words
"Participating Employer", "Participating Employers", and
"Company" shall thereafter be considered to refer only
to the withdrawing employer. Any such spinoff shall be
effected in such manner that each Participant or
Beneficiary would (if the Plan and the plan of the
withdrawing employer then immediately terminated)
receive a benefit which is equal to or greater than the
benefit the individual would have been entitled to
receive immediately before such spinoff if the Plan had
then terminated. No transfer of assets pursuant to this
section shall be effected until such statements with
respect thereto, if any, required by ERISA to be filed
in advance thereof have been filed.
(b)If subsection (a) does not apply, the Accounts of
Participants of the withdrawing employer and their
Beneficiaries shall continue to be held in the Plan for
distribution in accordance with the provisions hereof.
SEC. 13.9 PARTICIPATING EMPLOYERS NOT UNDER COMMON
CONTROLEC. 13.9 PARTICIPATING EMPLOYERS NOT UNDER COMMON
CONTROL. If a Participating Employer is not under Common
Control with the Company, the provisions of the Plan (other than
this Article XIII) shall be applied as though a separate plan is
being maintained for that Participating Employer to the extent
required by Code section 413(c).
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ARTICLE XIV
TOP-HEAVY PLAN PROVISIONSRTICLE XIV
TOP-HEAVY PLAN PROVISIONS
SEC. 14.1 KEY EMPLOYEE DEFINEDEC. 14.1 KEY EMPLOYEE
DEFINED. "Key Employee" means any employee or former employee
of the employer who at any time during the determination period
was an officer of the employer or is deemed to have had an
ownership interest in the employer and who is within the
definition of key employee in Code section 416(i). "Non-Key
Employee" means any employee who is not a Key Employee.
SEC. 14.2 DETERMINATION OF TOP-HEAVY
STATUSEC. 14.2 DETERMINATION OF TOP-HEAVY STATUS. The
top-heavy status of the Plan shall be determined according to
Code section 416 and the regulations thereunder, using the
following standards and definitions:
(a)The Plan is a Top-Heavy Plan for a Plan Year if either
of the following applies:
(1)If this Plan is not part of a required aggregation
group and the top-heavy ratio for this Plan exceeds
60 percent.
(2)If this Plan is part of a required aggregation group
of plans and the top-heavy ratio for the group of
plans exceeds 60 percent.
Notwithstanding paragraphs (1) and (2) above, the Plan
is not a Top-Heavy Plan with respect to a Plan Year if
it is part of a permissive aggregation group of plans
for which the top-heavy ratio does not exceed 60
percent.
(b)The "top-heavy ratio" shall be determined as follows:
(1)If the employer maintains one or more defined
contribution plans (including any simplified
employee pension plan) and has not maintained any
defined benefit plan which during the 5-year period
ending on the determination date has or has had
accrued benefits, the top-heavy ratio for this Plan
or for the required or permissive aggregation group
(as appropriate) is a fraction, the numerator of
which is the sum of the account balances of all Key
Employees under the Plan or plans as of the
determination date (including any part of any
account balance distributed in the five-year period
ending on the determination date), and the
denominator of which is the sum of the account
balances (including any part of any account balance
distributed in the five-year period ending on the
determination date) of all employees under the Plan
or plans as of the determination date. Both the
numerator and denominator of the top-heavy ratio
shall be increased to reflect any contribution not
actually made as of the determination date but which
is required to be taken into account on that date
under Code section 416 and the regulations
thereunder.
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(2) If the employer maintains one or more defined
contribution plans (including any simplified
employee pension plan) and maintains or has
maintained one or more defined benefit plans which
during the 5-year period ending on the determination
date has or has had any accrued benefits, the
top-heavy ratio for any required or permissive
aggregation group (as appropriate), is a fraction,
the numerator of which is the sum of the account
balances of all Key Employees under the aggregated
defined contribution plan or plans, determined
according to paragraph (1) above, and the present
value of accrued benefits of all Key Employees under
the defined benefit plan or plans as of the
determination date, and the denominator of which is
the sum of such account balances of all employees
under the aggregated defined contribution plan or
plans and the present value of accrued benefits of
all employees under the defined benefit plan or
plans as of the determination date. The account
balances and accrued benefits in both the numerator
and denominator of the top-heavy ratio shall be
adjusted to reflect any distributions made in the
five-year period ending on the determination date
and any contributions due but unpaid as of the
determination date.
(3)For purposes of paragraphs (1) and (2), the value of
account balances and the present value of accrued
benefits will be determined as of the most recent
valuation date that falls within the 12-month period
ending on the determination date, except as provided
in Code section 416 and the regulations thereunder
for the first and second plan years of a defined
benefit plan. The account balances and accrued
benefits of an employee (i) who is not a Key
Employee but who was a Key Employee in a prior year,
or (ii) who has not been credited with at least one
hour of service with any employer maintaining the
Plan at any time during the 5-year period ending on
the determination date, will be disregarded. The
calculation of the top-heavy ratio and the extent to
which distributions, rollovers, and transfers are
taken into account will be made in accordance with
Code section 416 and the regulations thereunder.
When aggregating plans, the value of account
balances and accrued benefits will be calculated
with reference to the determination dates that fall
within the same calendar year.
(c)"Required aggregation group" means (i) each qualified
plan of the employer in which at least one Key Employee
participates in the Plan Year containing the
determination date, or any of the four preceding Plan
Years, and (ii) any other qualified plan of the employer
that enables a plan described in (i) to meet the
requirements of Code sections 401(a)(4) and 410.
(d)"Permissive aggregation group" means the required
aggregation group of plans plus any other plan or plans
of the employer which, when consolidated as a group with
the required aggregation group, would
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continue to satisfy the requirements of Code sections
401(a)(4) and 410.
(e)"Determination date" means, for any Plan Year subsequent
to the first Plan Year, the last day of the preceding
Plan Year. For the first Plan Year of the Plan, the
last day of that year is the determination date.
(f)The "determination period" for a Plan Year is the Plan
Year in which the applicable determination date occurs
and the four preceding Plan Years.
(g)The "valuation date" is the last day of each Plan Year
and is the date as of which account balances or accrued
benefits are valued for purposes of calculating the
top-heavy ratio.
(h)For purposes of establishing the "present value" of
benefits under a defined benefit plan to compute the
top-heavy ratio, any benefit shall be discounted only
for mortality and interest based on the interest rate
and mortality table specified in the defined benefit
plan for this purpose.
(i) If an individual has not performed services for the
employer at any time during the five-year period ending
on the determination date with respect to a Plan Year,
any account balance or accrued benefit for such
individual shall not be taken into account for such Plan
Year.
(j)For purposes of determining if a defined benefit plan
included in a required aggregation group of which this
Plan is a part is a Top-Heavy Plan, the accrued benefit
to any employee (other than a Key Employee) shall be
determined as follows:
(1)Under the method which is used for accrual purposes
under all defined benefit plans maintained by the
employer.
(2)If there is no method described in paragraph (1), as
if such benefit accrued not more rapidly than the
lowest accrual rate permitted under Code section
411(b)(1)(C).
SEC. 14.3 MINIMUM CONTRIBUTION
REQUIREMENTEC. 14.3 MINIMUM CONTRIBUTION REQUIREMENT. For any
Plan Year with respect to which the Plan is a Top-Heavy Plan,
the employer contributions allocated to each Active Participant
who is not a Key Employee and whose Termination of Employment
has not occurred prior to the end of such Plan Year shall not be
less than the minimum amount determined in accordance with the
following:
(a)The minimum amount shall be the amount equal to that
percentage of the Participant's Compensation for the
Plan Year which is the smaller of:
(1)3 percent.
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(2)The percentage which is the largest percentage of
Compensation allocated to any Key Employee from
employer contributions for such Plan Year.
For purposes of this section, "Compensation" means the
amounts specified in Sec. 6.1(f), subject to the
limitation in Sec. 2.8(e).
(b)For purposes of this section, any employer contribution
attributable to a salary reduction or similar
arrangement shall be taken into accounts; provided,
however, that any employer contribution attributable to
a salary reduction or similar arrangement (including
Before Tax Contributions and Matching Contributions
under this Plan) may not be used to satisfy the minimum
amount of employer contributions which must be allocated
under subsection (a).
(c)This section shall not apply to any Participant who is
covered under any other plan of the employer under which
the minimum contribution or minimum benefit requirement
applicable to Top-Heavy Plans will be satisfied.
SEC. 14.4 PARTICIPATION UNDER DEFINED BENEFIT PLAN
AND DEFINEDEC. 14.4 PARTICIPATION UNDER DEFINED BENEFIT PLAN
AND DEFINED CONTRIBUTION PLAN. If a Participant is also a
participant in a defined benefit plan maintained by the
employer, with respect to any Plan Year for which the Plan is a
Top-Heavy Plan, Sec. 6.1(d) shall be applied:
(a)By substituting "1.0" for "1.25" in paragraphs (2)(B)
and (3)(B) of Code section 415(e).
(b) By substituting "$41,500" for "$51,875" in Code section
415(e)(6)(B)(i).
The foregoing provisions of this section shall be suspended with
respect to any individual so long as there are no employer
contributions, forfeitures, or voluntary nondeductible
contributions allocated to such individual, and no defined
benefit plan accruals for such individual, either under this
Plan or under any other plan that is in a required aggregation
group of plans, within the meaning of Code section
416(g)(2)(A)(i), that includes this Plan.
SEC. 14.5 DEFINITION OF EMPLOYEREC. 14.5 DEFINITION
OF EMPLOYER. For purposes of this Article XIV, the term
"employer" means all Participating Employers and any trade or
business entity under Common Control with a Participating
Employer.
SEC. 14.6 EXCEPTION FOR COLLECTIVE BARGAINING
UNITEC. 14.6 EXCEPTION FOR COLLECTIVE BARGAINING UNIT. Section
14.3 shall not apply with respect to any employee included in a
unit of employees covered by an agreement which the Secretary of
Labor finds to be a collective bargaining agreement between
employee representatives and one or more employers if there is
evidence that retirement benefits were the subject of good faith
bargaining between such employee representative and such
employer or employers.
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ARTICLE XV
MISCELLANEOUS PROVISIONSRTICLE XV
MISCELLANEOUS PROVISIONS
SEC. 15.1 INSURANCE COMPANY NOT RESPONSIBLE FOR
VALIDITY OF PLANEC. 15.1 INSURANCE COMPANY NOT RESPONSIBLE FOR
VALIDITY OF PLAN. No insurance company that issues a contract
under the Plan shall have any responsibility for the validity of
the Plan. An insurance company to which an application may be
submitted hereunder may accept such application and shall have
no duty to make any investigation or inquiry regarding the
authority of the applicant to make such application or any
amendment thereto or to inquire as to whether a person on whose
life any contract is to be issued is entitled to such contract
under the Plan.
SEC. 15.2 HEADINGSEC. 15.2 HEADINGS. Headings at
the beginning of articles and sections hereof are for
convenience of reference, shall not be considered a part of the
text of the Plan, and shall not influence its construction.
SEC. 15.3 CAPITALIZED
DEFINITIONSEC. 15.3 CAPITALIZED DEFINITIONS. Capitalized terms
used in the Plan shall have their meaning as defined in the Plan
unless the context clearly indicates to the contrary.
SEC. 15.4 GENDEREC. 15.4 GENDER. Any references to
the masculine gender include the feminine and vice versa.
SEC. 15.5 USE OF COMPOUNDS OF WORD
"HERE"EC. 15.5 USE OF COMPOUNDS OF WORD "HERE". Use of the
words "hereof", "herein", "hereunder", or similar compounds of
the word "here" shall mean and refer to the entire Plan,
including the Tables, Appendices and Schedules attached hereto,
unless the context clearly indicates to the contrary.
SEC. 15.6 CONSTRUED AS A WHOLEEC. 15.6 CONSTRUED AS
A WHOLE. The provisions of the Plan shall be construed as a
whole in such manner as to carry out the provisions thereof and
shall not be construed separately without relation to the
context.
ARTICLE XVI
AMOUNTS TRANSFERRED FROM OTHER PLANSRTICLE XVI
AMOUNTS TRANSFERRED FROM OTHER PLANS
SEC. 16.1 TRANSFERS FROM OTHER
PLANSec. 16.1 Transfers from Other Plans. The Company or its
Affiliates has acquired or may acquire certain employers which
sponsor plans with cash or deferred arrangements described in
Code section 401(k). Such plans are hereafter referred to as
"Predecessor Plans". Because of certain limitations imposed by
the Code and Treasury Regulations 1.401(k)-1(d)(3) and (4)
with regard to termination of Predecessor Plans, the Company may
arrange for merger of such plans into this Plan. Amounts
received from a Predecessor Plan will be held and paid out
pursuant to this Article. A person whose account is transferred
to the Plan from a Predecessor Plan will not be eligible to make
contributions under the Plan until the employee meets the
requirements of Sec. 4.1.
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SEC. 16.2 PREDECESSOR PLAN
ACCOUNTSEC. 16.2 PREDECESSOR PLAN ACCOUNTS. Amounts derived
from a Participant's Account under a Predecessor Plan will be
credited to his Predecessor Plan Account under this Plan. No
contributions shall be made by a Participating Employer to a
Predecessor Plan Account.
SEC. 16.3 INVESTMENT FUNDSEC. 16.3 INVESTMENT FUNDS.
Investment Funds for investment of Predecessor Plan Accounts
shall be established at the direction of the Company. The
Company shall determine the types of investments to be held in
each Investment Fund and the investment manager, trustee, or
insurance company responsible for selecting investments. Income
on investments of each Investment Fund shall be reinvested by
the Funding Agency in the same Investment Fund. If there is
more than one Investment Fund, a Participant may designate the
Investment Fund or Funds in which his Predecessor Plan Account
will be invested, and may direct a transfer of part or all his
Predecessor Plan Account from one Investment Fund to another
Investment Fund. However, investment in a given Investment Fund
may be limited to amounts derived from a particular Predecessor
Plan. Elections under this section shall be made in accordance
with rules and procedures established by the Company. Said
rules may require that the election be filed with the Company a
reasonable time prior to the date it will become effective. The
rules also may limit the frequency of such elections.
SEC. 16.4 VALUATION OF INVESTMENT
FUNDSEC. 16.4 VALUATION OF INVESTMENT FUNDS. As of each
Valuation Date, the Funding Agency shall determine, in
accordance with a method consistently followed and uniformly
applied, the fair market value of each Investment Fund. During
any period that all or a part of any Investment Fund is held
under a contract, of a type sometimes referred to as a
"guaranteed income contract", issued by an insurance company and
invested by it and under which the insurance company pays a
guaranteed minimum rate of return, and provided no event has
occurred that would result in a payment by the insurance company
under the contract at a discount from book value of the
contract, the fair market value of the contract shall be deemed
to equal its book value.
SEC. 16.5 VALUATION OF ACCOUNTSEC. 16.5 VALUATION OF
ACCOUNTS. As of each Valuation Date, the value of each
Participant's Predecessor Plan Account shall be adjusted to
reflect the effect of income, realized and unrealized profits
and losses, withdrawals, interfund transfers, and all other
transactions since the immediately preceding Valuation Date, as
follows:
(a) The portion of the Account invested in a particular
Investment Fund as of the preceding Valuation Date will
be reduced to reflect the amount of any distributions
that were made therefrom after the preceding Valuation
Date.
(b) The value of each such Account as determined in (a)
shall be adjusted pro rata so that the total value of all such
Accounts in the applicable Investment Fund equals the fair
market value of the applicable Investment Fund as of the
Valuation Date as determined by the Trustee.
(c) Any transfers between Investment Funds pursuant to
Sec. 16.3 shall then be made and Accounts adjusted or
established accordingly.
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SEC. 16.6 IN SERVICE WITHDRAWALSEC. 16.6 IN SERVICE
WITHDRAWALS. A Participant whose Termination of Employment has
not yet occurred may request withdrawals from his or her
Predecessor Plan Account pursuant to the rules of Sec. 9.3 as if
the Participant's Predecessor Plan Account were a Before Tax
Account; provided, however, that Sec. 9.3(a)(2) shall not apply.
Instead, with respect to any hardship withdrawal from a
Participant's Predecessor Plan Account, the amount of withdrawal
shall not exceed (i) the balance of the individual's accounts
under the Predecessor Plan as of December 31, 1988 (or the
balance of the Participant's Predecessor Plan Account under this
Plan as of December 31, 1988 if the Account was established
before 1989) plus the principal amount of any contributions made
to the Predecessor Plan after 1988 which were subject to a cash
or deferred election under Code section 401(k), minus (ii) the
amount of any previous withdrawals or distributions from either
the Predecessor Plan or the Predecessor Plan Account under this
Plan.
SEC. 16.7 DISTRIBUTIONSEC. 16.7 DISTRIBUTIONS. Each
Participant's Predecessor Plan Account is fully vested and
nonforfeitable. The balance in a Participant's Predecessor Plan
Account shall be distributed following the Participant's
Termination of Employment. Amounts remaining in a Participant's
Predecessor Plan Account at the time of his or her death shall
be distributed to the Participant's Beneficiary. Such
distributions to a Participant or Beneficiary shall be made at
the time and in the form the Participant elects, subject to the
following:
(a) Distributions may commence at any time after the
Participant's Termination of Employment. Distribution
shall be made by one or a combination of the following
methods, as the Participant or Beneficiary may select:
(1)Payment in a single sum.
(2)Payment in a series of annual or more frequent
installments.
(3)Purchase of a non-transferable annuity providing
benefits over the lifetime of the Participant or
over the lifetime of the Participant and his spouse.
However, this option is available only if the
Predecessor Plan from which the Account is derived
permitted purchase of a life annuity. Any such
annuity is subject to the requirements of Sec. 16.8.
(b)Unless the Participant elects otherwise, distributions
must commence no later than the 60th day after the close
of the Plan Year in which the Participant reaches Normal
Retirement Age or in which his Termination of Employment
occurs, whichever is later; provided, however, that if
the amount of the payment to be made cannot be
determined by the later of the aforesaid dates, a
payment retroactive to such date may be made no later
than 60 days after the earliest date on which the amount
of such payment can be ascertained.
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(c)For purposes of this Sec. 16.7, a Participant's
"required beginning date" is April 1 of the calendar
year following the calendar year in which the
Participant attains age 70 1/2, subject to the following:
(1)If the Participant attained age 70 1/2 before
January 1, 1988 and is not a more than 5-percent
owner, the Participant's required beginning date is
April 1 of the calendar year following the later of
(i) the calendar year in which the Participant
attained age 70 1/2, or (ii) the calendar year in which
his or her Termination of Employment occurs.
(2)If the Participant attained age 70 1/2 during 1988 and
is not a more than 5-percent owner, the
Participant's required beginning date is April 1,
1990.
For purposes of this subsection, a "more than 5-percent
owner" is a person who was a more than 5-percent owner
of a Participating Employer (as defined in Code section
416) at any time during the Plan Year ending with or
within the calendar year in which he or she attained age
66 1/2 or any subsequent Plan Year.
(d)Notwithstanding any provisions of the Plan to the
contrary, a Participant's entire benefit must be
distributed, or installments must commence, by the
Participant's required beginning date unless the
Participant's death occurs before that date.
(1)Installments during the life of the Participant
shall be paid no less rapidly than by reference to
one of the following periods: (i) a period-certain
not longer than the life expectancy of the
Participant, or (ii) a period-certain not longer
than the joint life and last survivor expectancy of
the Participant and the designated Beneficiary.
(2)Notwithstanding the foregoing, if the designated
Beneficiary is not the Participant's spouse,
installments during the life of the Participant
shall be limited to the maximum period permitted
under Proposed Treasury Regulation 1.401(a)(9)-2.
(e)If the Participant dies after his or her required
beginning date and after beginning to receive payments
in installments over a period-certain pursuant to
subsection (d), the remaining payments shall be made to
the Beneficiary at least as rapidly as under the method
of distribution selected by the Participant.
(f)If the Participant dies before his or her required
beginning date, the Participant's Predecessor Plan
Account shall be distributed to the Beneficiary not
later than December 31 of the year containing the fifth
anniversary of the Participant's death, subject to the
following:
(1)Distributions to a designated Beneficiary may
extend beyond five years from the death of the
Participant if they are in the
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form of installment payments over a period-certain
not exceeding the Beneficiary's life expectancy or
payments under an annuity contract for the life of
the Beneficiary, provided such payments begin not
later than December 31 of the year following the
year in which the Participant's death occurred.
(2)If the designated Beneficiary under paragraph (1) is
the surviving spouse of the Participant, payments
pursuant to paragraph (1) may commence at any time
on or before the later of (i) December 31 of the
year in which the Participant would have reached age
70 1/2, or (ii) December 31 of the year following the
year in which the Participant's death occurred.
If a surviving spouse who is entitled to benefits under
this subsection dies before distributions to the
surviving spouse begin, this subsection (other than
paragraph (2)) shall be applied as if the surviving
spouse were the Participant, with the date of death of
the surviving spouse being substituted for the date of
death of the Participant.
(g) If more than one Beneficiary is entitled to
benefits following the Participant's death, the interest
of each Beneficiary shall be segregated into a separate
Account for purposes of applying this section.
(h)If distributions are made in installments, the amount to
be distributed each calendar year, beginning with the
first calendar year for which payments are required,
must be at least equal to the quotient obtained by
dividing the entire interest of the individual on the
most recent Valuation Date preceding the calendar year
(adjusted as may be required by Treasury regulations) by
the lesser of (i) the number of years of life expectancy
which remain, determined as provided in subsection (i),
or (ii) in the case of distributions to a Participant
with a designated Beneficiary other than the
Participant's spouse, the applicable divisor prescribed
in regulations under Code section 401(a)(9)(G) relating
to incidental death benefits.
(1)For purposes of determining the amount which must be
distributed in any year, Excess Before Tax
Contributions, excess contributions and Excess
Deferrals distributed in accordance with Article V
(including income on such amounts) shall be
disregarded.
(2)For purposes of this subsection, the first calendar
year for which a distribution is required shall be
determined as follows:
(A) In the case of distributions to
the Participant, the first calendar year for
which a distribution is required is the year
preceding the calendar year which contains the
Participant's required beginning date.
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(B) In the case of distributions to a
designated Beneficiary pursuant to subsection
(f), the first calendar for which a distribution
is required is the calendar year containing the
latest date by which distribution must commence
under subsection (f).
(3)Any installment method under this section shall be
selected by a written election filed with the
Company by the person entitled to the distributions,
which shall specify the method for determining life
expectancies under subsection (i). The election
shall be irrevocable after the date payments are
required to commence under subsection (d) or (f),
except that the individual entitled to payments may
elect to receive a larger amount at any time.
(i)For purposes of this section, life expectancies shall be
determined by using the expected return multiples in
Tables V and VI of Treasury Regulation 1.72-9, in
accordance with regulations under Code section
401(a)(9). Such determinations shall also be in
accordance with the following:
(1) For life expectancies determined for purposes of
installment distributions to the Participant as of the required
beginning date, life expectancies shall be calculated based on
the Participant's (and the designated Beneficiary's) age as of
the birthday in the calendar year preceding the calendar year in
which falls the Participant's required beginning date. For
purposes of calculating the minimum distribution for each
succeeding calendar year, one of the following methods shall
apply as selected by the Participant (or by the surviving
spouse, where applicable):
(A)If the life expectancy of the Participant (or the
joint life and last survivor expectancy of the
Participant and the designated Beneficiary who is
a surviving spouse) is being recalculated
pursuant to paragraph (4), then the life
expectancy of the Participant (or the joint life
and last survivor expectancy of the Participant
and the surviving spouse) shall be recalculated
using the Participant's (and the spouse's) actual
age as of the Participant's birthday (and the
spouse's birthday) in each succeeding calendar
year.
(B)If the life expectancy of the Participant (or the
joint life and last survivor expectancy of the
Participant and the designated Beneficiary) is
not being recalculated, then the initial life
expectancy (or joint life and last survivor
expectancy) shall be reduced by one for each
subsequent calendar year.
(C)If a joint life and last survivor expectancy is
being determined by recalculating one but not
both of the joint lives, then the joint life and
last survivor expectancy shall be recalculated
using (i) the actual age of the individual whose
life expectancy is being recalculated as of the
individual's birthday in each succeeding calendar
year and (ii) the adjusted age of the individual
whose life expectancy is not being recalculated.
For purposes of the preceding sentence, an
individual's "adjusted age" is determined in
accordance with regulations under Code section
401(a)(9).
(2) For life expectancies determined for
purposes of subsection (f), the designated
Beneficiary's life expectancy shall be calculated
based on the Beneficiary's age as of the birthday in
the calendar year in which distributions are
required to commence pursuant to subsection (f).
For purposes of calculating the minimum distribution
for each succeeding calendar year, one of the
following methods shall apply:
(A)If the designated Beneficiary is the
Participant's surviving spouse, and the life
expectancy is being recalculated pursuant to
paragraph (4), then the surviving spouse's life
expectancy shall be recalculated using the
surviving spouse's actual age as of the surviving
spouse's birthday in each succeeding calendar
year.
(B)If the designated Beneficiary's life expectancy
is not being recalculated, then the initial life
expectancy shall be reduced by one for each
subsequent calendar year.
(3) If the life expectancy of a Participant
(or the Participant's spouse) is being recalculated
pursuant to paragraph (4), the recalculated life
expectancy of the Participant (or spouse) will be
reduced to zero in the calendar year following the
calendar year in which the person's death occurs.
(4) The life expectancy of a Participant or the life
expectancy of a designated Beneficiary who is the Participant's
spouse, or both of their life expectancies, may be recalculated
each year if so elected by the Participant (or spouse). Such
election must be made no later than the time of the first
required distribution under subsections (d) or (f). Such
election shall be irrevocable after the date distributions must
commence. If no election is made by that date, life
expectancies will not be recalculated.
(j)If benefits are to be distributed by purchase of an
annuity, the issuer may be any company engaged in the
business of writing annuity contracts. The annuity must
provide for substantially non-increasing periodic
payments over the life of the Participant, the joint
lives of the Participant and the Participant's
designated Beneficiary, or a fixed period no longer than
the applicable life expectancy or joint life and last
survivor expectancy allowed under subsection (d), (e) or
(f). Life expectancies for this purpose shall be
determined pursuant to subsection (i) at the time
payments begin. Except as provided in subsection (a)(3)
above, the annuity contract shall be endorsed to
prohibit any optional settlement which provides for
payment in any form of a life annuity or in any other
form not permitted under subsection (a). In the case of
any conflict between the provisions of any annuity
contract and the provisions of the Plan, the provisions
of the Plan shall control.
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PAGE 58
(k)For purposes of this section, "designated Beneficiary"
means any individual who is a Beneficiary pursuant to
Article VIII.
(l)Notwithstanding the foregoing, if the total value of all
the Accounts under this Plan of a Participant (or a
Beneficiary following the Participant's death) is $3,500
or less on the Valuation Date coincident with or
immediately following the date the Participant's
Termination of Employment or death occurs, a single-sum
distribution shall be made to the Participant (or
Beneficiary) as of the earliest date permitted by the
Plan. However, this subsection shall not apply to a
Participant if the total value of the Participant's
Accounts exceeded $3,500 at the time any previous
distribution was made to the Participant.
(m) Notwithstanding any provision of the Plan to the
contrary, distributions under this section shall be made
in accordance with the requirements of Code section
401(a)(9), including the incidental death benefit
requirements of Code section 401(a)(9)(G) and the
regulations thereunder. No distribution option
otherwise permitted under this Plan will be available to
a Participant or Beneficiary if such distribution option
does not meet the requirements of Code section
401(a)(9), including subparagraph (G) thereof.
(n) Distributions from Predecessor Plan Accounts
normally will be made in cash. However, because the
Plan is a stock bonus plan, each Participant and
Beneficiary has the right to direct that any
distribution from his or her Predecessor Plan Account be
made in the form of ADM Stock. If an individual makes
such an election, the Trustee shall acquire sufficient
ADM Stock to make the distribution in that form. Any
brokerage fees paid to acquire such stock shall be
charged to the Account. Distributions in the form of
ADM Stock must be in amounts of at least 100 shares (or
the remaining Account balance if less than 100 shares).
(o) Distributions under this Article are subject to the
provisions of sections 10.4 through 10.11.
SEC. 16.8 SPECIAL REQUIREMENTS FOR MARRIED
PARTICIPANT ELECTING LIFE ANNUITY BENEFITEC. 16.8 SPECIAL
REQUIREMENTS FOR MARRIED PARTICIPANT ELECTING LIFE ANNUITY
BENEFIT. If a Participant has elected to receive a life annuity
benefit and is married on the date benefit payments begin, then,
notwithstanding such election, unless the Participant files a
written election of a different form of payment within the
90-day period ending on the date as of which payments are to
begin, the entire value of the Participant's Predecessor Plan
Account shall be applied to purchase a qualified joint and
survivor annuity. A "qualified joint and survivor annuity" is
an annuity payable to the Participant for life with a survivor
annuity for the remainder of the life of the Participant's
surviving spouse in a monthly amount equal to 50% of the amount
the Participant was receiving prior to his death. A
Participant's election of a form of payment other than a
qualified joint and survivor annuity under this subsection shall
not be effective unless the Participant's spouse consents in
writing to such election, and the consent acknowledges the
effect of the election and is witnessed by a Plan representative
or a notary public. Any consent of a spouse under this section
shall be irrevocable. However, such consent shall not be
required if the Participant establishes to the satisfaction of a
representative of the Plan that such consent cannot be obtained
because there is no spouse, because the spouse cannot be
located, or because of such other circumstances as may be
prescribed by federal regulations.
If a Participant has elected to receive a life annuity
benefit, dies before benefit payments begin, and is married on
the date of death, and if the Participant's Beneficiary is his
or her surviving spouse, the benefit to which the spouse is
entitled shall be applied to purchase an annuity for the life of
the spouse, unless the spouse files a written election of some
other form of payment after the Participant's death and prior to
the due date of the first benefit payment to the spouse.
For purposes of this section, a "life annuity benefit"
is any benefit payable under Sec. 16.7(a)(3).
58
PAGE 59
TABLE 1
PARTICIPATING EMPLOYERS
The following are Participating Employers:
(1) Archer-Daniels-Midland Company, a Delaware corporation
(2) ADM Milling Co., a Minnesota corporation
(3) ADM Feed Corporation, a Delaware corporation
(4) Gooch Foods, Inc., a Delaware corporation
(5) American River Transportation Co., a Delaware corporation
(6) Tulane Fleeting, Inc. a Louisiana corporation
(7) Supreme Sugar Company, Inc. a Louisiana corporation
(8) ADM Trucking, Inc., a Delaware corporation
(9) The Columbian Peanut Company, a Virginia corporation
(10) Tabor Grain Co., a Nevada corporation
(11) Coeval, Inc., an Illinois corporation
(12) The Smoot Grain Company, Inc., a Kansas corporation
(13) Fleischmann-Kurth Malting Company, Inc., a Delaware
corporation
(14) ADM/Growmark River Systems, Inc., a Delaware corporation
(15) ADM Alceco, Inc., an Iowa corporation
(16) New Orleans Shipyard, Inc., a Louisiana corporation
(17) Reidy Terminal, Inc., a Missouri corporation
(18) Hickory Point Bank & Trust, an Illinois corporation
(19) Midwest Processing Company, a North Dakota corporation
(20) Alabama Feed Mills, Inc., an Alabama corporation
(21) Monarch Feed Mill, Inc., a Missouri corporation
(22) Collingwood Grain, Inc., a Delaware corporation
(23) Tabor Grain-Patoka, Inc., a Delaware corporation
(24) ADM Investor Services, Inc., a Delaware corporation
(25) V. LaRosa and Sons, Inc., a New York corporation
59
PAGE 60
TABLE 2
PREDECESSOR EMPLOYERS
The following are Predecessor Employers with respect to which
prior service is recognized for the group of employees described
below who became employees of a Participating Employer as a
result of the type of transaction described in the definition of
a Predecessor Employer in the Plan. The name of the Predecessor
Employer is listed in column (a). The effective date as of
which the employer becomes a Predecessor Employer with respect
to the specified group of employees is listed in column (b).
The locations at which the former employees of the Predecessor
Employer must be employed as of the effective date in order to
be within the group of employees with respect to which the
Predecessor Employer is defined (and the group/location numbers)
are listed in column (c).
(a) (b) (c)
(1) Pfizer Inc. 12-15-90 Southport, NC (10-789)
(2) Garnac Grain 1-1-93 Beardstown, IL (A2-Z54)
Burlington, IA (A2-Z52)
Evansville, IN (A2-Z57)
Keithsburg, IL (A2-Z51)
Lake Village, AR (A2-Z59)
Macomb, IL (A2-Z53)
Monroe City, IN (A2-Z61)
Newburgh, IN (A2-Z58)
Orleans, IL (A2-Z55)
San Diego, LA (A2-Z60)
Winona, MN (A2-Z50)
Winslow, IN (A2-Z56)
(3) Agri-Trans 1-1-93 ARTCO-Agri-
Trans(Non-Supervisory
Personnel) (08-609)
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PAGE 61
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
APPENDIX A
With respect to Participants at Participating
Locations listed in the Schedule of Participating Employer
herein, the provisions of the Plan shall include the following:
I.
A participant may elect to have his or her current
earnings reduced by any whole percent, but not exceeding six
percent (6%) of Certified Earnings, so that the Participating
Employer will make a Before Tax Contribution of such amount for
the benefit of the Participant pursuant to Sec. 5.1.
II.
For purposes of Sec. 5.2(a), the Participating
Employers shall make a Matching Contribution for each month
determined from the following schedule based on the
Participant's Before Tax Contributions for that month:
I. II.
For Before Tax Contributions The Matching
Contributions will
representing the following be the following percent
of
percentages of the Participant's that Participant's
Before Tax
CERTIFIED EARNINGS FOR THE MONTH CONTRIBUTION IN THIS
BRACKET
The first 2% 100%
The next 4% 50%
Above 6% None
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PAGE 62
APPENDIX A
SCHEDULE OF PARTICIPATING LOCATIONS
The following are Participating Locations for purposes of
Appendix A as of the dates specified:
GRP/LOC NAME EFFECTIVE DATE
10-B89 Decatur Co-Generation 04-10-89
10-401 Peoria Alcohol 04-24-89
10-346 Clinton Corn Sweeteners 05-01-89
10-D07 Des Moines Refinery - Soybean07-03-89
10-F52 Cedar Rapids Co-Generation 07-03-89
10-F53 Des Moines - Co-Generation 07-03-89
10-367 Decatur - ADM Mechanical 07-03-89
10-370 Decatur Mason Fabrication Shop07-03-89
10-A31 Macon, GA Refinery - Soybean03-05-90
10-250 Kershaw - Soybean 03-05-90
10-772 Decatur - Specialty Food Ingredients 05-07-90
A2-F40 Ama ADM/Growmark 06-04-90
10-776 Decatur Bio-Chem 08-13-90
10-881 ADM - MASA Champaign 08-27-90
10-174 Decatur Reconstruction 11-05-90
10-789 Southport, NC 12-15-90
08-104 Ama Tow Boat - ARTCO 01-01-91
10-668 Lincoln Soy Construction 02-04-91
10-527 Walhalla Alcohol 06-03-91
A2-400 Peoria Terminal - ADM/Growmark06-03-91
G2-B78 St. Louis Reidy Term 07-01-91
08-B76 Cassville 07-01-91
08-B77 Camanche 07-01-91
G1-719 New Orleans Shipyard 07-01-91
A2-F32 Morris - ADM/Growmark 07-01-91
A2-350 Morris - ADM/Growmark 07-01-91
A2-F34 Naples - ADM/Growmark 07-01-91
A2-387 Ottawa - ADM/Growmark 07-01-91
A2-584 Ottawa - ADM/Growmark 07-01-91
A2-444 Spring Valley - ADM/Growmark07-01-91
A2-F31 Hennepin - ADM/Growmark 07-01-91
18-J68 Tulane Fleeting 07-01-91
90-B02 Peoria Marine Service 07-22-91
90-B11 LaSalle Marine Service 10-01-91
90-F26 Peoria Marine Service 01-01-92
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PAGE 63
GRP/LOC NAME EFFECTIVE DATE
10-F01 Busnell, IL - Sybn 02-03-92
10-859 Chattanooga, TN - Refinery07-01-92
A2-Z54 Beardstown, IL 01-01-93
A2-Z52 Burlington, IA 01-02-93
A2-Z57 Evansville, IN 01-01-93
A2-Z51 Keithsburg, IL 01-01-93
A2-Z51 Lake Village, AR 01-01-93
90-Z53 Macomb, IL 01-01-93
A2-Z61 Monroe City, IN 01-01-93
A2-Z58 Newburgh, IN 01-01-93
A2-Z55 Orleans, IL 01-01-93
A2-Z60 San Diego, CA 01-01-93
A2-Z50 Winona, MN 01-01-93
A2-Z56 Winslow, IN 01-01-93
08-609 Agri-Trans 01-01-93
10-778 Decatur ADM Fabrication 03-25-93
63
PAGE 64
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
APPENDIX B
With respect to Participants at Participating
Locations listed in the Schedule of Participating Locations
herein, the provisions of the Plan shall include the following:
I.
A Participant may elect to have his or her current
earnings reduced by any whole percent, but not exceeding four
percent (4%) of Certified Earnings, so that the Participating
Employer will make a Before Tax Contribution of such amount for
the benefit of the Participant pursuant to Sec. 5.1.
II.
For purposes of Sec. 5.2(a), the Participating
Employers shall make a Matching Contribution for each month
determined from the following schedule based on the
Participant's Before-Tax Contributions for that month:
I. II.
For Before Tax Contributions The Matching
Contributions will
representing the following be the following percent
of
percentages of the Participant's that Participant's
Before Tax
CERTIFIED EARNINGS FOR THE MONTH CONTRIBUTION IN THIS
BRACKET
The first 2% 100%
Above 2% None
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PAGE 65
APPENDIX B
SCHEDULE OF PARTICIPATING LOCATIONS
The following are Participating Locations for purposes of
Appendix B as of the dates specified:
GRP/LOC NAME EFFECTIVE DATE
10-671 Keokuk, IA 01-01-94
30-435 Western Star Milling, Salina, KS 01-01-94
30-442 Econo-Flo Shop Milling, Salina, KS 01-01-94
10-551 Valdosta, GA 01-01-94
30-853 Chicago Flour Milling 01-01-94
30-265 Lincoln Flour 01-01-94
65
PAGE 66
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
[AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1994]
66
PAGE 67
TABLE OF CONTENTS
ARTICLE I GENERAL
Sec. 1.1 Name and Form of Plan 1
Sec. 1.2 Purpose 1
Sec. 1.3 Effective Date 1
Sec. 1.4 Company 1
Sec. 1.5 Participating Employers 1
Sec. 1.6 Construction and Applicable Law 1
Sec. 1.7 Benefits Determined Under Provisions in Effect at
Termination of Employment 1
Sec. 1.8 Transfers To and From ADM Savings and Investment
Plan 2
ARTICLE II MISCELLANEOUS DEFINITIONS
Sec. 2.1 Account 3
Sec. 2.2 Active Participant 3
Sec. 2.3 ADM Stock 3
Sec. 2.4 Affiliate 3
Sec. 2.5 Before Tax Contributions 3
Sec. 2.6 Beneficiary 3
Sec. 2.7 Board 3
Sec. 2.8 Certified Earnings 3
Sec. 2.9 Code 4
Sec. 2.10 Common Control 4
Sec. 2.11 ERISA 4
Sec. 2.12 Family Member 4
Sec. 2.13 Fund 5
Sec. 2.14 Funding Agency 5
Sec. 2.15 Highly Compensated Employee 5
Sec. 2.16 Leased Employee 6
Sec. 2.17 Matching Contribution 6
Sec. 2.18 Named Fiduciary 6
Sec. 2.19 Non-Highly Compensated Employee 7
Sec. 2.20 Normal Retirement Age 7
Sec. 2.21 Participant 7
Sec. 2.22 Participating Location 7
Sec. 2.23 Plan Year Employee 7
Sec. 2.26 Successor Employer 8
Sec. 2.27 Top-Heavy Plan 8
Sec. 2.28 Trustee 8
Sec. 2.29 Valuation Date 8
ARTICLE III SERVICE PROVISIONS
Sec. 3.1 Employment Commencement Date 9
Sec. 3.2 Termination of Employment 9
Sec. 3.3 Hours of Service 9
Sec. 3.4 Eligibility Computation Period 11
Sec. 3.5 Year of Eligibility Service 11
Sec. 3.6 1-Year Break In Service 11
ARTICLE IV PLAN PARTICIPATION
Sec. 4.1 Entry Date 12
Sec. 4.2 Eligibility for Participation 12
Sec. 4.3 Duration of Participation 13
Sec. 4.4 No Guarantee of Employment 13
ARTICLE V CONTRIBUTIONS
Sec. 5.1 Before Tax Contributions 14
Sec. 5.2 Matching Contributions 15
Sec. 5.3 Before Tax and Matching Contributions Made as ADM
Stock 15
Sec. 5.4 Adjustment of Contributions Required by Code
Section 401(k) 16
Sec. 5.5 Distribution of Excess Deferrals 19
Sec. 5.6 Adjustment of Contributions Required by Code
Section 401(m) 20
Sec. 5.7 Multiple Use of the Alternative Limitations 22
Sec. 5.8 Time of Contributions 23
Sec. 5.9 Limitations on Contributions 23
ARTICLE VI LIMITATION ON ALLOCATIONS
Sec. 6.1 Limitation on Allocations 24
ARTICLE VII INDIVIDUAL ACCOUNTS
Sec. 7.1 Accounts for Participants 27
Sec. 7.2 Investment of Accounts 27
Sec. 7.3 Valuation of Accounts 27
Sec. 7.4 Certificates 28
Sec. 7.5 Voting and Other Rights Regarding ADM Stock 28
Sec. 7.6 Tender or Exchange Offers Regarding ADM Stock 28
Sec. 7.7 Rollover Accounts 29
ARTICLE VIII DESIGNATION OF BENEFICIARY
Sec. 8.1 Persons Eligible to Designate 31
Sec. 8.2 Special Requirements for Married Participants 31
Sec. 8.3 Form and Method of Designation 31
Sec. 8.4 No Effective Designation 31
Sec. 8.5 Successor Beneficiary 32
Sec. 8.6 Insurance Contract 32
ARTICLE IX BENEFIT REQUIREMENTS
Sec. 9.1 Benefit on Termination of Employment 33
Sec. 9.2 Death 33
Sec. 9.3 Withdrawals Before Termination of Employment 33
ARTICLE X DISTRIBUTION OF BENEFITS
Sec. 10.1 Time and Method of Payment 36
Sec. 10.2 Form of Distribution 37
Sec. 10.3 Accounting Following Termination of Employment 38
Sec. 10.4 Reemployment 38
Sec. 10.5 Source of Benefits 38
Sec. 10.6 Incompetent Payee 38
Sec. 10.7 Benefits May Not Be Assigned or Alienated 38
Sec. 10.8 Payment of Taxes 38
Sec. 10.9 Conditions Precedent 39
Sec. 10.10Company Directions to Trustee 39
Sec. 10.11Special Distribution Events 39
67
PAGE 68
ARTICLE XI FUND
Sec. 11.1 Composition 40
Sec. 11.2 Funding Agency 40
Sec. 11.3 Compensation and Expenses of Trustee 40
Sec. 11.4 Funding Policy 40
Sec. 11.5 Share Registration 40
Sec. 11.6 No Diversion 40
ARTICLE XII ADMINISTRATION OF PLAN
Sec. 12.1 Administration by Company 42
Sec. 12.2 Certain Fiduciary Provisions 42
Sec. 12.3 Discrimination Prohibited 43
Sec. 12.4 Evidence 43
Sec. 12.5 Correction of Errors 43
Sec. 12.6 Records 43
Sec. 12.7 General Fiduciary Standard 43
Sec. 12.8 Prohibited Transactions 43
Sec. 12.9 Claims Procedure 44
Sec. 12.10Bonding 44
Sec. 12.11Waiver of Notice 44
Sec. 12.12Agent For Legal Process 44
Sec. 12.13Indemnification 44
ARTICLE XIII AMENDMENT, TERMINATION, MERGER
Sec. 13.1 Amendment 45
Sec. 13.2 Permanent Discontinuance of Contributions 45
Sec. 13.3 Termination 45
Sec. 13.4 Partial Termination 45
Sec. 13.5 Merger, Consolidation, or Transfer of Plan Assets
46
Sec. 13.6 Deferral of Distributions 46
Sec. 13.7 Reorganizations of Participating Employers 46
Sec. 13.8 Discontinuance of Joint Participation of a
Participating Employer 46
Sec. 13.9 Participating Employers Not Under Common Control 47
ARTICLE XIV TOP-HEAVY PLAN PROVISIONS
Sec. 14.1 Key Employee Defined 48
Sec. 14.2 Determination of Top-Heavy Status 48
Sec. 14.3 Minimum Contribution Requirement 50
Sec. 14.4 Participation under Defined Benefit Plan and
Defined 50
Sec. 14.5 Definition of Employer 51
Sec. 14.6 Exception For Collective Bargaining Unit 51
ARTICLE XV MISCELLANEOUS PROVISIONS
Sec. 15.1 Insurance Company Not Responsible for Validity of
Plan 52
Sec. 15.2 Headings 52
Sec. 15.3 Capitalized Definitions 52
Sec. 15.4 Gender 52
Sec. 15.5 Use of Compounds of Word "Here" 52
Sec. 15.6 Construed as a Whole 52
ARTICLE XVI AMOUNTS TRANSFERRED FROM OTHER PLANS
Sec. 16.1 Transfers from Other Plans 53
Sec. 16.2 Predecessor Plan Accounts 53
Sec. 16.3 Investment Funds 53
Sec. 16.4 Valuation of Investment Funds 53
Sec. 16.5 Valuation of Accounts 53
Sec. 16.6 In Service Withdrawals 54
Sec. 16.7 Distributions 54
Sec. 16.8 Special Requirements for Married Participant
Electing Life Annuity Benefit 59
TABLE 1: PARTICIPATING EMPLOYERS 60
TABLE 2: PREDECESSOR EMPLOYERS 61
APPENDIX A 62
Schedule of Participating Locations 63
APPENDIX B 65
Schedule of Participating Locations 66
68
PAGE 69
FIRST AMENDMENT
TO THE
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
The ADM Savings and Investment Plan for Hourly Employees (As
Amended and Restated Effective January 1, 1994) is hereby
amended as follows:
I
Section 1.5 is amended effective January 1, 1994, by restating
the final sentence thereof to read as follows:
The Company shall maintain a "List of Participating
Employers" for the Plan indicating the date on which an
employer becomes a Participating Employer and the date on
which an employer ceases to be a Participating Employer.
II
Section 1.6 is amended effective January 1, 1994, by
substituting "Central District" for "Southern District" where
the latter appears therein.
III
Section 1.8 is deleted effective January 1, 1995.
IV
Section 2.22 is amended effective January 1, 1994, to read as
follows:
SEC 2.22 PARTICIPATING LOCATION. A
"Participating Location" is any location of a Participating
Employer designated as such by the Company. The Company
shall maintain a "List of Participating Locations" for
Appendix A and Appendix B of the Plan, indicating the date
on which a location becomes a Participating Location under
that Appendix and the date on which a location ceases to be
a Participating Location under that Appendix.
V
Section 2.24 is amended effective January 1, 1994, to read as
follows:
SEC. 2.24 PREDECESSOR EMPLOYER. A "Predecessor
Employer" is any corporation, partnership, firm, or
individual, an integral portion of whose assets and business
has been acquired by a Participating
69
PAGE 70
Employer or from whose employment an integral group or unit
of employees has been transferred to employment by a
Participating Employer and service for which the Company
grants credit for eligibility purposes under this Plan. Any
other employer shall be a Predecessor Employer if so
required by regulations prescribed by the Secretary of the
Treasury. The Company shall maintain a "List of Predecessor
Employers" for the Plan, indicating the date on which the
employer becomes a Predecessor Employer and the group or
unit of employees with respect to which the employer is a
Predecessor Employer. Prior service credit shall be granted
in a manner that does not produce discrimination in favor of
Highly Compensated Employees.
VI
Section 3.2 is amended effective January 1, 1989, by restating
the final sentence thereof to read as follows:
Notwithstanding the foregoing, a Termination of
Employment shall be deemed not to have occurred for
purposes of entitling a Participant to a distribution if
the Participant has not had a "separation from service"
or "disability" as defined in applicable regulations
(although a distribution may be permitted under Sec.
10.11).
VII
Section 4.2 is amended effective January 1, 1995, by deleting
subsection (f) thereof.
VIII
Section 4.5 is added effective January 1, 1995, to read as
follows:
SEC. 4.5 PARTICIPATION OF U.S. CITIZENS EMPLOYED
BY FOREIGN SUBSIDIARIES. A citizen or resident of the
United States who is employed by an eligible foreign
subsidiary (as defined below) of a Participating Employer
shall be treated as an employee of that Participating
Employer for the period of his/her employment with the
eligible foreign subsidiary if (i) the Participating
Employer has entered into an agreement under Code section
3121(l) that applies to the eligible foreign subsidiary, and
(ii) the employee does not receive contributions under any
funded plan of deferred compensation with respect to
remuneration received from the eligible foreign subsidiary.
For purposes of this section, an "eligible foreign
subsidiary" is any corporation organized outside of the
United States, its territories or the District of Columbia
10% or more of the voting stock of which is owned by the
Participating Employer. If this section applies to an
employee, his/her compensation for purposes of the Plan
shall be determined under Code section 406(b).
70
PAGE 71
IX
Section 5.3 is amended effective April 1, 1994, by restating
subsection (a) to read as follows:
(a) The number of shares of ADM Stock
contributed to the Fund for a given month shall be
determined by dividing the dollar amount of the
Before Tax and Matching Contributions for such month
for all Participants by the closing price of a share
of ADM Stock on the New York Stock Exchange for the
business day immediately preceding the day the
Company directs its transfer agent to issue shares
to the Fund (as reported in The Wall Street Journal
published for the next following business day).
X
Section 5.3 is amended effective January 1, 1995, to read as
follows:
SEC. 5.3 FORM OF CONTRIBUTION. Before Tax and
Matching Contributions shall be paid to the Fund as soon as
practicable following the close of each month in cash or
shares of ADM Stock, as determined at the sole discretion of
the Company. If paid in shares of ADM Stock, such shares
shall be valued at the closing price of a share of ADM Stock
on the New York Stock Exchange for the business day
immediately preceding the day the Company directs its
transfer agent to issue such shares to the Fund (as reported
in The Wall Street Journal published for the next following
business day).
XI
Section 6.1 is amended effective January 1, 1995, by restating
paragraph (1) of subsection (a) thereof to read as follows:
(1) $30,000 (or such greater or lesser
amount as is in effect under Code section
415(c)(1)(A) for the Plan Year).
XII
Section 7.1 is amended effective January 1, 1995, by deleting
subsection (d) thereof and by relettering the following
subsection accordingly.
XIII
Section 7.2 is amended effective January 1, 1995, to read as
follows:
SEC. 7.2 INVESTMENT OF ACCOUNTS. Accounts shall
be invested in shares of ADM Stock; except that, cash
contributions, cash dividends,
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cash repayments on a participant loan and other cash amounts
received by the Fund may be held in cash or short term
investments pending investment in shares of ADM Stock, all
or a portion of an Account may be invested in a participant
loan to the extent so provided in the participant loan
program, and Predecessor Plan Accounts shall be invested in
accordance with Article XVI.
XIV
Section 7.3 is amended effective January 1, 1995, to read as
follows:
SEC. 7.3 VALUATION OF ACCOUNTS. Accounts (other
than Predecessor Plan Accounts) shall be adjusted to reflect
contributions, distributions, dividends and other income,
and all other transactions as follows:
(a) VALUATION DATE ADJUSTMENTS. As of each
Valuation Date, the following adjustments shall be
made to reflect transactions during the period since
the immediately preceding Valuation Date:
(1) DISTRIBUTIONS. All distributions
paid during such period shall be subtracted from
the stock or cash balance of the Account, as
appropriate.
(2) ISSUANCE OF LOANS. All shares of
ADM Stock sold during such period to allow for a
participant loan from an Account shall be
subtracted from the stock balance of the Account
and the cash proceeds of such sale shall be added
to the cash balance of the Account to be
reflected as a loan to the Participant.
(3) CASH DIVIDENDS. All shares of ADM
Stock purchased with cash dividends received
during such period (plus the income, if any, from
the short-term investment of such dividends)
shall be allocated among the Accounts and the
number of shares allocated to each shall be added
to the stock balance of the Account. The number
of shares allocated to each Account shall be
determined by multiplying the number of shares to
be allocated under this paragraph by a fraction,
the numerator of which is the number of shares of
ADM Stock allocated to the Account as of the
immediately preceding Valuation Date reduced by
the number of such shares distributed during the
period or sold during the period to allow for a
cash distribution or participant loan, and the
denominator of which is the total number of
shares of ADM Stock allocated to all Accounts as
of the immediately preceding Valuation Date
reduced by the number of such shares distributed
during the period or sold during the period to
allow for a cash distribution or participant
loan.
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(4) CONTRIBUTIONS. All shares of ADM
Stock received as a contribution for such period
and all shares of ADM Stock purchased with cash
contributions received for such period (plus the
income, if any, from the short-term investment of
such cash contributions) shall be allocated among
the Before Tax Accounts and Matching Accounts,
and the number of shares allocated to each
Account shall be added to the stock balance of
the Account. The number of shares allocated to
the Before-Tax Account or Matching Account of a
Participant, as appropriate, shall be determined
by multiplying the number of shares to be
allocated under this paragraph by a fraction, the
numerator of which is the Before-Tax
Contributions or Matching Contributions, as
appropriate, of the Participant for such period,
and the denominator of which is the total of the
Before-Tax Contributions and Matching
Contributions of all Participants for such
period.
(5) LOAN REPAYMENTS. All principal
payments on a participant loan shall be
subtracted from the cash balance of the Account
from which the loan was drawn. All shares of ADM
Stock purchased with principal and interest
payments received during such period on
participant loans (plus the income, if any, from
the short-term investment of such payments) shall
be allocated among the Accounts and the number of
shares allocated to each shall be added to the
stock balance of the Account. The number of
shares allocated to an Account shall be
determined by multiplying the number of shares to
be allocated under this paragraph by a fraction,
the numerator of which is the dollar amount of
the payments received during such period on a
participant loan drawn from that Account and the
denominator of which is the dollar amount of all
principal and interest payments received during
such period on participant loans.
(6) EXPENSES. All expenses paid
during such period from an Account shall be
subtracted from the balance of the Account.
(b) OTHER ADJUSTMENTS. As of the record date
of any stock dividend, stock split or reverse stock
split, the number of shares of ADM Stock credited to
an Account shall be adjusted as appropriate to
reflect such stock dividend, stock split or reverse
stock split. As of the date of any distribution
from an Account against which a participant loan is
to be offset, all interest accrued but unpaid on
such participant loan shall be added to the cash
balance of the Account.
Predecessor Plan Accounts shall be adjusted as of each
Valuation Date as provided in Article XVI.
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XV
Section 7.7 is amended effective January 1, 1995, by restating
the last sentence of subsection (a) thereof to read as follows:
The plan from which a Rollover Contribution has been
allowed as of January 1, 1995, is the Dennis E. Roby
& Associates, Inc. Thrift and Savings Plan.
XVI
Section 7.8 is added effective January 1, 1995, to read as
follows:
SEC. 7.8 TRANSFERS TO/FROM SALARIED PLAN. If a
Participant transfers into a class of employment such that
he or she becomes a participant in the ADM Savings and
Investment Plan ("Salaried Plan"), his or her Accounts under
this Plan shall be transferred to the Salaried Plan to be
administered and paid thereunder. If a participant in the
Salaried Plan transfers into a class of employment such that
he or she becomes a Participant in this Plan, this Plan
shall accept a transfer of his or her Accounts from the
Salaried Plan, and each such Account shall be added to the
corresponding Account under this Plan. In the case of a
transfer of a Tax Credit Account, such Account shall be
established under this Plan, and any special distribution
options available under the Salaried Plan shall be available
under this Plan with respect to such Account.
XVII
Sections 9.1 and 9.2 are amended effective January 1, 1995, to
read as follows:
SEC. 9.1 BENEFIT ON TERMINATION OF EMPLOYMENT.
If a Participant's Termination of Employment occurs for any
reason other than death, the Participant shall be fully
vested and shall be entitled to a benefit equal to the
number of shares of ADM Stock credited to his/her Accounts
as of the date of distribution, plus the cash balance of
his/her Accounts (including Predecessor Plan Accounts) as of
the Valuation Date immediately preceding the date of
distribution. The benefit shall be paid at the time and in
the manner determined under Article X.
SEC. 9.2 DEATH. If a Participant's Termination
of Employment occurs as a result of death (or if the
Participant's death occurs after his/her Termination of
Employment but before distribution of his/her benefit), the
Participant's Beneficiary shall be entitled to a benefit
equal to the number of shares of ADM Stock credited to
his/her Accounts as of the date of distribution, plus the
cash balance of his/her Accounts (including Predecessor Plan
Accounts) as of the Valuation Date immediately preceding the
date of distribution. The benefit shall be paid at the time
and in the manner determined under Article X.
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XVIII
Section 9.3 is amended effective January 1, 1995, by restating
paragraphs (1)(A)(iii) and (1)(A)(v) of subsection (a) to read
as follows, and by deleting subsection (c) and relettering the
following subsections accordingly:
(iii) Payment of tuition, related
educational fees and room and board expenses for
the next semester or quarter of post-secondary
education for the Participant or the spouse,
child or dependent of the Participant.
(v) Any other immediate and heavy
financial need which the Company determines
satisfies the requirements of Treasury Regulation
1.401(k)-1(d)(2), and which the Company
describes in objective and nondiscriminatory
terms set forth in a writing that is deemed to
form a part of this Plan.
XIX
Section 10.1 is amended effective January 1, 1995, to apply with
respect to any distributions made on or after such date
(regardless of when termination of employment occurred) to read
as follows:
SEC. 10.1 TIME AND METHOD OF PAYMENTEC. 10.1
TIME AND METHOD OF PAYMENT. The benefit to which a
Participant or Beneficiary becomes entitled under Article IX
shall be paid as follows:
(a) TIME OF PAYMENT.
(1) NORMAL PAYMENT DATE. Payments
shall be made or commence as soon as
administratively practicable after the
Participant (or his/her Beneficiary in the event
of death) files a request for distribution with
the Company, but not before the end of the
calendar quarter in which the Participant's
Termination of Employment occurs.
(2) LATEST PAYMENT DATE. Payments
shall be made or commence to a Participant not
later than the 60th day after the close of the
Plan Year in which he/she reaches Normal
Retirement Age or in which his/her Termination of
Employment occurs, whichever is later, unless the
Participant elects to defer payment (and for this
purpose, the failure to request payment shall be
deemed to be an election to defer payment). In
any event, payments shall be made or commence to
a Participant not later than the April 1 of the
calendar year following the calendar year in
which he/she attains age 70 1/2.
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(b) METHOD OF PAYMENT.
(1) PAYMENTS TO PARTICIPANT. Payment
to a Participant shall be in the following form:
(A) RETIREMENTS. If the
Participant's Termination of Employment is a
Normal Retirement or an Early Retirement
under the ADM Retirement Plan (or if the
Participant is receiving disability payments
under the ADM Long-Term Disability Plan),
payment shall be made in either of the
following forms at the election of the
Participant:
(i) A single-sum
distribution of the full benefit payable
to the Participant, or
(ii) Partial
distributions each of which consists of
not less than 100 shares of ADM stock (or
the cash equivalent thereof) or such
other minimum amount as may be necessary
to comply with the minimum distribution
rules described in subsection (c) below.
If a Participant has not received a
distribution of his/her full benefit prior to
the April 1 of the calendar year following
the calendar year in which he/she attains age
70 1/2, then partial distributions shall be made
as necessary to comply with the minimum
distribution rules described in subsection
(c) below.
(B) VESTED TERMINATIONS. If
the Participant's Termination of Employment
is neither a Normal Retirement nor an Early
Retirement under the ADM Retirement Plan (and
the Participant is not receiving disability
payments under the ADM Long-Term Disability
Plan), payment to the Participant shall be in
the form of a single-sum distribution of the
full benefit payable to the Participant
(partial distributions are not permitted).
Such payment shall be made not later than the
April 1 of the calendar year following the
calendar year in which the Participant
attains age 70 1/2.
(2) PAYMENTS TO BENEFICIARY. Payment
to a Beneficiary shall be in either of the
following forms at the election of the
Beneficiary:
(A) A single-sum distribution
of the full benefit payable to the
Beneficiary, or
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(B) Partial distributions
each of which consists of not less than 100
shares of ADM stock (or the cash equivalent
thereof) or such other minimum amount as may
be necessary to comply with the minimum
distribution rules described in subsection
(c) below.
In any event, payment of the full
benefit payable to a Beneficiary shall be made
not later than the December 31 of the calendar
year containing the fifth anniversary of the
Participant's death.
(c) MINIMUM DISTRIBUTION RULES.
Notwithstanding any contrary provision of the Plan,
payments shall be made as necessary to comply with
the minimum distribution rules of Code section
401(a)(9) (including the incidental death benefit
rules of Code section 401(a)(9)(G)) and the
regulations thereunder. The following rules shall
apply:
(1) The full benefit payable to a
Participant shall be distributed (or minimum
distributions shall commence) by the April 1 of
the calendar year following the calendar year in
which the Participant attains age 70 1/2 unless
he/she dies prior to such date.
(2) Minimum distributions during the
life of the Participant shall be paid no less
rapidly than by reference to a period-certain
equal to the joint life and last survivor
expectancy of the Participant and his/her
Beneficiary. However, if the Beneficiary is not
the Participant's spouse, minimum distributions
during the life of the Participant shall be paid
no less rapidly than by reference to the maximum
period permitted under the incidental death
benefit rules of Code section 401(a)(9)(G).
(3) If a Participant dies on or after
the April 1 of the calendar year following the
calendar year in which he/she attains age 70 1/2,
minimum distributions after the death of the
Participant shall be made to his/her Beneficiary
at least as rapidly as under the minimum
distribution method being used prior to death.
In addition, the Participant's entire remaining
benefit shall be distributed to his/her
Beneficiary not later than December 31 of the
calendar year containing the fifth anniversary of
the Participant's death.
(4) If a Participant dies before the
April 1 of the calendar year following the
calendar year in which he/she attains age 70 1/2,
his/her entire remaining benefit shall be
distributed to his/her Beneficiary not later than
December 31 of the calendar year containing the
fifth anniversary of the Participant's death.
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(5) The minimum distribution for each
calendar year for which a minimum distribution is
required shall be equal to the quotient obtained
by dividing the entire balance of the
Participant's Accounts as of the most recent
Valuation Date preceding the calendar year (as
adjusted as may be required by Treasury
regulations) by the lesser of (i) the number of
years of life expectancy that remain, or (ii) in
the case of distributions to a Participant with a
Beneficiary other than his or her spouse, the
applicable divisor prescribed in regulations
under the incidental death benefit rules of Code
section 401(a)(9)(G). For purposes of
determining the amount which must be distributed
in any year, Excess Salary Reduction
Contributions, Excess Aggregate Contributions and
Excess Deferrals distributed in accordance with
Article V (including income on such amounts)
shall be disregarded.
(7) For purposes of calculating
minimum distributions, life expectancies shall be
determined by using the expected return multiples
in Tables V and VI of Treas. Reg. 1.72-9, in
accordance with regulations under Code section
401(a)(9). Life expectancies shall be calculated
based on the Participant's (and the
Beneficiary's) age as of the birthday in the
calendar year in which the Participant attains
70 1/2. For purposes of calculating the minimum
distribution for each succeeding calendar year,
the initial life expectancy (or joint life and
last survivor expectancy) shall be reduced by one
for each subsequent calendar year.
(d) CASH-OUT OF SMALL BENEFITS.
Notwithstanding the above, if the aggregate value of
a Participant's Accounts is $3,500 or less as of the
last day of the calendar quarter in which his/her
Termination of Employment or death occurs, a single-
sum distribution shall be made to the Participant
(or his/her Beneficiary in the event of death) as
soon as administratively practicable thereafter.
The preceding sentence shall not apply, however, if
the aggregate value of the Participant's Accounts
exceeded $3,500 immediately prior to any previous
distribution to the Participant.
(e) MULTIPLE BENEFICIARIES. If more than one
Beneficiary is entitled to benefits following the
Participant's death, the interest of each shall be
segregated into a separate Account for purposes of
applying this Section (other than subsection (d)).
XX
Section 10.2 is amended effective January 1, 1995, to apply with
respect to any distributions made on or after such date
(regardless of when termination of employment occurred) to read
as follows:
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SEC. 10.2 FORM OF DISTRIBUTIONEC. 10.2 FORM OF
DISTRIBUTION. Distributions shall be made in accordance
with the following:
(a) Distributions under Sec. 9.1, 9.2, 9.3,
10.11 or 16.6 shall be made in the following form at
the election of the recipient:
(1) Fully in cash.
(2) Fully in whole shares of ADM Stock
with any fractional share in cash.
(3) Partly in cash and partly in whole
shares of ADM Stock.
Any distribution that is required even in
the absence of an affirmative election by the
recipient shall be made fully in whole shares of ADM
Stock with any fractional share in cash if the
recipient does not timely file an affirmative
election to the contrary.
(b) Distributions under Sec. 5.4, 5.5, 5.6,
5.7 or 6.1 shall be in cash.
(c) Distributions to a Participant, to the
surviving spouse of a deceased Participant, or to an
alternate payee under a qualified domestic relations
order (as defined in Code section 414(p)) who is the
spouse or former spouse of a Participant may be in
the form of a direct rollover for the benefit of the
recipient to an individual retirement account or
annuity described in Code section 408 or, except in
the case of a recipient who is the surviving spouse
of a deceased Participant, to another qualified plan
described in Code section 401(a). However, no such
direct rollover shall be allowed if the distribution
is part of a series of installments payable over a
period of ten years or more, or if the distribution
is required under Code section 401(a)(9). The
recipient shall provide the Trustee with the
information necessary to accomplish the direct
rollover in such form as the Company or the Trustee
may require. Direct rollovers made in accordance
with such instructions shall constitute full
settlement of the Plan's liability with respect to
the amount rolled over, and the Plan, the Trustee,
and the Company shall have no further liability with
respect to such amounts. Transfers under this
subsection shall be made in accordance with Code
section 401(a)(31) and the regulations thereunder.
Any distribution in cash (other than a distribution of
cash in lieu of a fractional share) shall be reduced to
reflect any broker fees incurred on the sale of ADM
Stock.
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XXI
Section 10.3 is amended effective January 1, 1995, to read as
follows:
SEC. 10.3 ACCOUNTING FOLLOWING TERMINATION OF
EMPLOYMENT. If distribution of all or any part of an
Account is deferred or delayed for any reason, the Account
shall continue to be revalued in accordance with the terms
of the Plan. Distribution of such Account shall be made as
soon as administratively practicable following the end of
the calendar quarter in which the Participant (or his/her
Beneficiary in the event of death) files the distribution
request with the Company.
XXII
Section 10.7 is amended effective January 1, 1995, to read as
follows:
SEC. 10.7 BENEFITS MAY NOT BE ASSIGNED OR
ALIENATEDEC. 10.7 BENEFITS MAY NOT BE ASSIGNED OR
ALIENATED. Except as otherwise expressly permitted by the
Plan or required by law, the interests of persons entitled
to benefits under the Plan may not in any manner whatsoever
be assigned or alienated, whether voluntarily or
involuntarily, or directly or indirectly. However, the Plan
shall comply with the provisions of any court order which
the Company determines is a qualified domestic relations
order as defined in Code section 414(p). Notwithstanding
any provisions in the Plan to the contrary, an individual
who is entitled to payments from the Plan as an "alternate
payee" pursuant to a qualified domestic relations order may
receive a lump sum payment from the Plan as soon as
administratively feasible after the Company determines that
the order is a qualified domestic relations order, unless
the order specifically provides for payment to be made at a
later time; provided, however, that if the order assigns an
interest in a Predecessor Plan Account invested in an
Investment Fund pursuant to Article XVI, payment may be
delayed until after the Valuation Date coincident with or
next following the date of the Company's determination with
respect to the order.
XXIII
Sections 10.12 and 10.13 are added effective January 1, 1995, to
read as follows:
SEC. 10.12 DELAY OF DISTRIBUTION IN EVENT OF
STOCK DIVIDEND OR SPLIT. No distribution shall be made
between the record date and the ex-date of any stock
dividend, stock split or reverse stock split if the ex-date
is after the record date.
SEC. 10.13 PARTICIPANT LOAN PROGRAM. The
Company may establish a participant loan program in
accordance with ERISA section 408(b)(1), the terms and
conditions of which shall be determined by the Company and
set forth in written rules and regulations. The rules and
regulations shall apply on a uniform basis to all
Participants, and shall not allow for deemed distributions
upon default of a loan prior to the date distributions are
permitted under Sec. 9.1, 9.2, 9.3, or 10.11.
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XXIV
Section 11.7 is added effective January 1, 1995, to read as
follows:
SEC. 11.7 CONVERSION OF ADM STOCK TO CASH. If it
is necessary to convert shares of ADM Stock held in the Fund
to cash to provide for a distribution or participant loan,
or for any other reason required under the Plan, conversion
may be made by exchanging such shares for cash (if any) then
held in the Fund and credited to Accounts (other than
Predecessor Plan Accounts), or by selling such shares on the
open market or to the Company. If shares are exchanged for
cash then held in the Fund or sold to the Company, the
exchange or sale shall be made at the closing price of a
share of ADM Stock on the New York Stock Exchange for the
business day immediately preceding the transaction (as
reported in The Wall Street Journal published for the next
following business day).
XXV
Section 13.1 is amended effective January 1, 1994, to read as
follows:
SEC. 13.1 AMENDMENT. The Company may amend the
Plan at any time and from time to time by action of the
Board or by written action of a person to whom, or committee
to which, amendment authority has been delegated by the
Board. No action by a person or committee with amendment
authority shall constitute an amendment to the Plan unless
the action is in writing and the writing specifically states
that it is an amendment to the Plan. No amendment shall
have the effect of changing the rights, duties and
liabilities of any Funding Agency without its written
consent. Also, no amendment shall cause a decrease in any
accrued benefit or the elimination of any optional form of
benefit except to the extent permitted under Code section
411(d)(6).
XXVI
Section 16.1 is amended effective January 1, 1995, to read as
follows:
SEC. 16.1 TRANSFERS FROM OTHER PLANS. The Company
may from time to time arrange for the merger of another
qualified defined contribution plan (referred to as a
"Predecessor Plan") with and into this Plan. Account
balances transferred from a Predecessor Plan to this Plan
(referred to as a "Predecessor Plan Account") shall be
administered pursuant to this Article. A person whose
account balance is transferred from a Predecessor Plan to
this Plan shall not be eligible to make contributions under
this Plan until he/she has become a Participant in
accordance with Article IV.
XXVII
Section 16.6 is amended effective January 1, 1995, to read as
follows, and Section 16.7 is deleted effective January 1, 1995,
and Section 16.8 is renumbered as 16.7 and references thereto
are renumbered accordingly:
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SEC. 16.6 OPTIONAL FORMS OF DISTRIBUTIONS. All
optional forms of distribution available under the
Predecessor Plan shall be available under this Plan for a
Predecessor Plan Account; except that, any hardship
standards on distribution shall be as specified in this
Plan. All distribution options available under this Plan
for an Account shall also be available for any subaccount
within a Predecessor Plan Account that holds contributions
of the same type.
XXVIII
Sec. 16.7 (as renumbered above) is amended effective January 1,
1995, by restating the last paragraph thereof to read as
follows:
For purposes of this section, a "life annuity
benefit" is any optional form of distribution available for
a Predecessor Plan Account in the form of an annuity for the
life of the Participant.
XXIX
Table 1 is deleted effective January 1, 1994.
XXX
Table 2 is deleted effective January 1, 1994.
XXXI
The Schedule of Participating Locations in Appendix A is deleted
effective January 1, 1994, and the introductory paragraph to
Appendix A is amended to read as follows:
With respect to Participants at Participating
Locations under this Appendix A, the provisions of the Plan
shall include the following:
XXXII
The Schedule of Participating Locations in Appendix B is deleted
effective January 1, 1994, and the introductory paragraph to
Appendix B is amended to read as follows:
With respect to Participants at Participating
Locations under this Appendix B, the provisions of the Plan
shall include the following:
82