RETIREMENT SAVINGS PLAN
OF
TYSON FOODS, INC.
(Restated Effective January 1, 1993)
17
TABLE OF CONTENTS
Section Page
DEFINITIONS
1.1 - Definitions...................................... 3
PARTICIPATION
2.1 - Eligibility for Initial Participation............ 19
2.2 - Active Participation............................. 19
2.3 - Leave of Absence and Termination of Service...... 20
2.4 - Participation Following Reemployment............. 23
2.5 - Rights of Other Employers to Participate in
the Plan........................................ 24
2.6 - Participation and Benefits for Participants
Transferred to or From Status as an Employee.... 25
PARTICIPANT CONTRIBUTIONS AND ROLLOVER
CONTRIBUTIONS
3.1 - Salary Deferral Contributions................... 27
3.2 - Rollover Contributions.......................... 33
EMPLOYER'S CONTRIBUTIONS
4.1 - Amount of Employer's Contributions.............. 36
4.2 - Limitation on Use of "Two Times" Test .......... 42
4.3 - Vesting of Employer Contribution Account ........ 43
4.4 - Vesting on Death, Disability or Normal
Retirement.................................... 44
4.5 - Vesting if Plan Terminated or Employer
Contributions Discontinued.................... 44
4.6 - Effect of Break in Service on Vesting........... 45
4.7 - Disposition of Forfeited Amounts................ 45
4.8 - Change in Vesting Schedule...................... 46
INVESTMENT OF CONTRIBUTIONS
5.1 - Investment Funds................................ 48
5.2 - Designation by Participant of Investment Funds.. 49
5.3 - Change of Investment Designation................ 49
5.4 - Transfers Among Investment Funds................ 50
5.5 - Special One Time Election ...................... 50
INDIVIDUAL ACCOUNTS
6.1 - Establishing and Maintaining Participant's
Accounts...................................... 52
18
Section Page
ACCOUNTING
7.1 - Valuation of Accounts............................ 54
7.2 - Maximum Annual Addition on Behalf of any
Participant During any Limitation Year......... 57
7.3 - Crediting of Salary Deferral Contributions....... 62
7.4 - Allocation and Crediting of Employer's
Contributions.................................. 63
7.5 - Effective Date of Entries........................ 64
DISTRIBUTIONS
8.1 - Initial Distribution Date....................... 65
8.2 - Establishment of Distribution Account........... 65
8.3 - Date of Distribution ........................... 65
8.4 - Methods of Distribution......................... 67
8.5 - Deferred Retirement............................. 70
8.6 - Cash-Out Distributions.......................... 70
8.7 - Payment of Benefits Upon Death of Participant... 71
8.8 - Spousal Consent................................. 71
8.9 - Death Before Commencement of Benefits... ....... 71
8.10 - Withdrawals While Still Employed................ 72
8.11 - Eligible Rollover Distributions ................ 76
SPECIAL PROVISIONS APPLICABLE IF PLAN IS
TOP-HEAVY
9.1 - Applicability of Top-Heavy Plan Provisions...... 78
9.2 - Determination of Plan Years in Which Plan is
Top-Heavy..................................... 78
9.3 - Minimum Vesting for Top-Heavy Plan Year......... 82
9.4 - Minimum Contributions for Top-Heavy Plan Year... 83
MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
10.1 - Participants to Furnish Required Information.... 84
10.2 - Beneficiaries................................... 85
10.3 - Contingent Beneficiaries........................ 86
10.4 - Participants' Rights in Trust Fund.............. 87
10.5 - Benefits not Assignable......................... 87
10.6 - Benefits Payable to Minors and Incompetents..... 88
10.7 - Conditions of Employment Not Affected by Plan... 89
10.8 - Notification of Mailing Address................. 89
10.9 - Lost Payee ..................................... 90
10.10- Written Communications Required................. 91
10.11- Benefits Payable at Office Trustee.............. 91
10.12- Appeal to Committee............................. 91
19
Section Page
MISCELLANEOUS PROVISIONS REGARDING THE EMPLOYER
11.1 - Employer's Contribution Irrevocable............. 94
11.2 - Absence of Responsibility....................... 94
11.3 - Amendment of Plan............................... 94
11.4 - Termination of Plan............................. 97
11.5 - Merger of Plan.................................. 98
11.6 - Expenses of Administration...................... 98
11.7 - Formal Action by Employer....................... 99
ADMINISTRATION
12.1 - Administration by Committee..................... 100
12.2 - Officers and Employers of Committee............. 100
12.3 - Action by Committee............................. 101
12.4 - Rules and Regulations of Committee.............. 102
12.5 - Powers of Committee............................. 102
12.6 - Duties of Committee............................. 103
12.7 - Indemnification of Members of Committee......... 104
12.8 - Plan Fiduciaries................................ 105
12.9 - Applicable Law.................................. 107
TRUST FUND
13.1 - Purpose of Trust Fund........................... 108
13.2 - Benefits Supported Only by Trust Fund........... 108
13.3 - Trust Fund Applicable Only to Payment of
Benefits...................................... 108
LOANS TO PARTICIPANTS
14.1 - General Procedure ............................... 109
14.2 - Amount of Loans ................................. 109
14.3 - Loan Conditions ................................. 110
20
RETIREMENT SAVINGS PLAN
OF
TYSON FOODS, INC.
The Retirement Savings Plan of Tyson Foods, Inc. (the "Plan"),
originally effective October 1, 1987, is hereby restated by Tyson Foods,
Inc. (the "Employer"), effective January 1, 1993, in order to continue to
provide a means for eligible employees to defer a portion of their
compensation and to encourage savings to provide additional financial
security for the future.
The Plan, as restated herein, reflects all amendments made by Employer
as required by TRA 1986, OBRA 1987, TAMRA 1988, OBRA 1989, RRA 1990, the
unemployment Compensation Act of 1992 and OBRA 1993, as well as numerous
Treasury regulation changes since the previous restatement. The Plan, as
restated herein, also reflects amendments associated with the mergers into
this Plan, effective July 1, 1991, of the following qualified retirement
plans (collectively the "Merged Plans"):
(1) the Tyson Employee Retirement Income Savings Plan (the
"Tyson Thrift Plan");
(2) the Henry House, Inc. Employees Savings Plan;
(3) the Victor F. Weaver, Inc. Retirement/Savings Plan;
(4) the Holly Farms Corporation and Subsidiaries Employee
Retirement Savings Plan for Hourly Employees; and
(5) the Holly Farms Corporation and Subsidiaries Employee
Retirement Savings Plan for Salaried Employees.
The Employer acknowledges receipt of all of the assets of the Merged
Plans effective July 1, 1991. Accordingly, the assets of the Plan and its
related Retirement Savings Trust of Tyson Foods, Inc. (the "Trust"),
including the assets transferred from the Merged Plans, shall be held,
administered and distributed for the purposes and in the manner set out in
the following restated Plan, to-wit:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS
(A) The following words and phrases shall have the meanings assigned
below unless a different meaning is plainly required by the context:
(1) "Accounting Date" shall mean the last day of each calendar
month of each Plan Year subsequent to the Effective Date of the Plan and
such other date or dates as may be established by the Committee during the
Plan Year.
(2) "Beneficiary" shall mean the person or persons on whose
behalf benefits may be payable under the Plan after a Participant's death
in accordance with the provisions hereof.
21
(3) "Break in Service" shall mean, with respect to a Non-
Maritime Employee, the failure to complete more than 500 Hours of Service
during a Plan Year, or, with respect to a Maritime Employee, the failure to
complete more than 62 Days of Service during a Plan Year.
(4) "Committee" shall mean the administrative committee
appointed from time to time to administer the Plan pursuant to the
provisions of Section 12.1 hereof.
(5) "Company" shall mean Tyson Foods, Inc., and its successor or
successors.
(6) "Compensation" shall mean the compensation actually paid to
an Employee by the Employer as reported on the Employee's Federal income
tax withholding statement (Form W-2) or its subsequent equivalent;
exclusive however, of the following:
(a) relocation pay;
(b) any non-cash compensation;
(c) commissions; and
(d) compensation paid on an irregular or discretionarybasis
such as discretionary bonuses or special awards.
Provided, however, that for purposes of determining an individual's
"average deferral percentage" and/or "average contribution percentage"
under Sections 3.1(E) and 4.1(D) of the Plan, "Compensation shall include
all of the items of income described in subparagraphs (a) through (d) of
this Section 6.
Any amounts that would have been includable in the Employee's
Compensation as described above if they had not received special tax
treatment because they were deferred by the Employee through a salary
reduction agreement shall be added to the amount described above and
included in the Employee's "Compensation" for purposes of the Plan.
The annual Compensation of each Employee taken into account under the
Plan shall not exceed $200,000 or such other amount as may be specified by
the Secretary of the Treasury pursuant to his duties under 401(a)(17) of
the Code. In addition to other applicable limitations set forth in the
Plan, and notwithstanding any other provision of the Plan to the contrary,
for plan years beginning on or after January 1, 1994, the annual
compensation of each Employee taken into account under the Plan shall not
exceed the OBRA '93 annual compensation limit. The OBRA '93 annual
compensation limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with section 401(a)(17)(B) of
the Internal Revenue Code. The cost-of-living adjustment in effect for a
calendar year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in such
calendar year. If a determination period consists of fewer than 12 months,
the OBRA '93 annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the determination period,
and the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in
this Plan to the limitations under section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current plan
year, the Compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
22
determination period. For this purpose, for determination periods
beginning before the first day of the first plan year beginning on or after
January 1, 1994, the OBRA '93 annual compensation limit is $150,000.
For purposes of applying the above limit to a Highly Compensated
Employee who is a 5% Owner (as defined in 416(i)(1) of the Code) or one of
the ten most highly paid Highly Compensated Employees, the Highly
Compensated Employee's family shall be treated as a single employee with
one Compensation and the limit shall be allocated among the family members
in proportion to each member's Compensation. For purposes of this
paragraph, a Highly Compensated Employee's family shall include his or her
spouse and his or her lineal descendants who have not reached the age of 19
before the end of the year.
The term "Compensation" is subject to any modifications that are
applicable under Section 9.4 hereof during years, if any, that the Plan is
top-heavy.
(7) "Controlled Group Member" shall mean:
(a) The Employer;
(b) Any corporation or association that is a member of a
controlled group of corporations (within the meaning of 1563(a) of the
Code, determined without regard to 1563(a)(4) and 1563(e)(3)(C) of said
Code, except that, for the purposes of applying the limitations on benefits
and contributions that are required under 415 of the Code and are described
in Section 7.2 hereof, such meaning shall be determined by substituting the
phrase "more than 50%" for the phrase "at least 80%" each place that it
appears in 1563(a)(1) of said Code) with respect to which the Employer is a
member;
(c) Any trade or business (whether or not incorporated) that is
under common control with the Employer as determined in accordance with
414(c) of the Code and regulations issued thereunder; and
(d) Any service organization that is a member of an affiliated
service group (within the meaning of 414(m) of the Code) with respect to
which the Employer is a member.
(8) "Designated Nonparticipating Employer" shall mean:
(a) Any Controlled Group Member that is not an Employer as
defined herein; and
(b) Any other corporation, association, proprietorship,
partnership, or other business organization that (i) is not an Employer and
(ii) the Company, by formal action on its part in the manner described in
Section 11.7 hereof designates on the basis of a uniform policy applied
without discrimination as a "Designated Nonparticipating Employer" for the
purposes of the Plan.
(9) "Effective Date of the Plan", as restated, shall mean January 1,
1993 or such later date as of which the Plan first became effective with
respect to the particular Employer concerned. The original effective date
of the Plan was October 1, 1987. Except as provided below, all amendments
to the Plan as reflected herein were effective April 1, 1991. However,
Sections 1.1(A)(1), (6), (10) and (17), 2.1, 7.2 and 8.4(B) were amended
effective October 1, 1987; Sections 3.1(E), 3.2, 4.1(A), 4.1(D), 4.2, 8.1,
8.2, 8.3, 8.4(A), 8.6, 8.10(4) and (8), 9.2 and 9.4 were amended effective
April 1, 1989; and Sections 1.1(A)(36), 3.2, 5.1, 5.3, 5.4 and 7.1 were
amended effective January 1, 1993.
(10) "Employee" shall mean a "Maritime Employee" or a "Non- Maritime
Employee", and shall include "leased employees" within the meaning of
Sections 414(n) and (o) of the Code. "Maritime Employee" shall mean any
person who, with respect to any Plan Year, is employed by the Employer in
the "Maritime Industry". "Maritime Industry" is that industry in which
Employees perform duties for the Employer on board commercial, exploratory,
23
service or other vessels moving on the high seas, inland waterways, Great
Lakes, coastal zones, harbors and non-contiguous areas, or on offshore
ports, platforms or other similar sites. "Non-Maritime Employee" shall
mean any person, other than a "Maritime Employee", on the payroll of the
Employer whose wages from the Employer are subject to withholding for the
purposes of Federal income taxes and for the purposes of the Federal
Insurance Contributions Act. Employee will not include any person (a)
rendering services to the Employer as an independent contractor, (b)
serving the Employer as a member of its Board of Directors and not
otherwise employed by it, (c) not treated as an employee for purposes of
Federal Insurance Contributions Act or (d) engaged only in an advisory or
consulting capacity on a retainer or fee basis.
(11) "Employer" shall mean, collectively or distributively as the
context may indicate, the Company and any other corporations, associations,
joint ventures, proprietorships or partnerships that have adopted and are
participating in the Plan in accordance with the provisions of Section 2.5
hereof; provided, however, if the Plan is adopted on behalf of the
Employees of one or more, but less than all, divisions or facilities of an
employer, the term "Employer" shall apply only to the divisions or
facilities on behalf of whose Employees the Plan has been adopted.
(12) "Employer's Contributions" shall mean the amounts contributed by
the Employer to the Plan on behalf of the Participants, as more fully
described in Section 4.1 hereof.
(13) "Employer Contribution Account" shall mean the balance credited
to the individual account of the Participant to reflect his interest in the
Trust Fund that is attributable to the Employer's Contributions on his
behalf to the Plan. If applicable, the Employer Contribution Account shall
be divided into such subaccounts as are required to reflect the
Participant's interest in the various Investment Funds, as described in
Section 5 hereof.
(14) "Employment Commencement Date" means, in the case of a Non-
Maritime Employee, the first date on which such Employee completes an "Hour
of Service," or, in the case of a Maritime Employee, the first date on
which such Employee completes a "Day of Service"; provided that in the case
of a "Break in Service," an Employee's employment commencement date shall
be the first day thereafter on which he completes an "Hour of Service" or
"Day of Service", as the case may be.
(15) "Entry Date" shall mean the first day of each calendar month.
(16) "Family Member" shall mean an individual described in
414(q)(6)(B) of the Code.
(17) "Highly Compensated Employee" shall mean any Employee who, during
the Determination Year or the Look-Back Year -
(A) was at any time a "5-percent owner" (as defined in 16(q)(3)
of the Code,
(B) received compensation in excess of $75,000.
(C) received compensation in excess of $50,000 and was in the
Top-Paid Group of employees for such year, or
(D) was at any time an officer and received compensation
greater than 50 percent of the amount in effect under 415(b)(1)(A) of the
Code for such year.
The Secretary shall adjust the $75,000 and $50,000 amounts under this
Section at the same time and in the same manner as under 415(d) of the
Code. For purposes of this Section (17), the term "compensation" shall have
the meaning given such term by 414(q)(7) of the Code. An Employee not
described in (B), (C) or (D) above for the Look-Back Year (without regard
to this paragraph) shall not be treated as described in (B), (C) or (D) for
the Determination Year unless such Employee is a member of the group
24
consisting of the 100 employees paid the greatest compensation during the
Determination Year.
Determination Year means the Plan Year for which the determination of
Highly Compensation Employee is being made. Look-Back Year means the twelve
(12) month period immediately preceding the Determination Year.
An Employee is in the Top-Paid Group of employees for any year if such
Employee is in the group consisting of the top 20 percent of the employees
when ranked on the basis of compensation paid during such year. For
purposes of (D), no more than 50 employees (or, if lesser, the greater of 3
employees or 10 percent of the employees) shall be treated as officers. If
for any year no officer of the Employer is described in (D), the highest
paid officer of the Employer for such year shall be treated as described in
(D).
Special Rules for Certain Family Members:
(y) General Rule. If an Employee is a Family Member of a 5- percent
owner (as described in subsection (A)) or of a Highly Compensated Employee
in the group consisting of the 10 most highly compensated Employees who are
Participants in this Plan for the Plan Year, then:
(1) such Employee will not be considered to be a separate
Employee for purposes of computing the Deferral Percentage Tests or the
Contribution Percentage Tests under the Plan;
(2) any compensation paid to such Employee and any contributions
made to such Employee's Accounts, shall for purposes of the Deferral
Percentage Tests and the Contribution Percentage Tests, be treated as if
made to or on behalf of such Employee's Family Member who is a 5-percent
owner or is one of the 10 most highly compensated Employees;
(z) Family Members. For purposes of this subsection, the term
"Family Member" shall mean with respect to an Employee, (1) the Employee's
spouse; (2) the Employee's lineal ascendants and descendants; and (3) the
spouses of such lineal ascendants and descendants.
"Non-Highly Compensated Employee" shall mean an Employee who is
neither a Highly Compensated Employee nor a Family Member (as defined
above) of a Highly Compensated Employee.
(18) "Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These hours shall
be credited to the Employee for the computation period in which the duties
are performed; and
(b) Each hour for which an Employee is paid, or entitled to
payment, by the 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. Hours
under this subparagraph (b) shall be calculated and credited pursuant to
2530.200(b)-2 of the Department of Labor Regulations which are incorporated
herein by this reference; and
(c) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by the Employer. The same hours
of service shall not be credited both under subparagraph (a) or (b), as the
case may be, and under this subparagraph (c). These hours shall be credited
to the Employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made; and
(d) Hours of service credited to Employees whose compensation
is not determined on the basis of certain amounts for each hour worked
25
during a given period and whose hours are not required to be counted and
recorded by a separate federal statute such as the Fair Labor Standards Act
shall be at the rate of 45 hours of service for each week that the Employee
is entitled to be credited with at least one "hour of service" under the
provisions of this section.
(19) "Initial Distribution Date" shall mean the date which is
established following the Participant's termination of service for any
reason pursuant to Section 8.1 hereof for distribution of the value in his
individual accounts.
(20) "Internal Revenue Code" or "Code" shall mean the Internal Revenue
Code of 1986, as now or hereafter amended from time to time.
(21) "Limitation Year" shall mean the year used for application of the
limitations of 415 of the Code, and, unless the Employer elects a different
Limitation Year by formal action on its part in the manner described in
Section 11.7 hereof, shall be the Plan Year.
(22) "Participant" shall mean any person who has met the requirements
of Section 2.1 hereof and whose individual accounts have not been
subsequently distributed in full. "Active Participant" shall mean any
Participant who is currently making Salary Deferral Contributions to the
Plan.
(23) "Plan" shall mean the Retirement Savings Plan of Tyson Foods,
Inc., originally adopted effective October 1, 1987, restated effective
April 1, 1991 as set forth in this instrument and as it may hereafter be
amended from time to time.
(24) "Plan Year" shall mean the fiscal year on which the records of
the Plan are kept as reported from time to time by the plan administrator
to the Internal Revenue Service. The Plan Year, unless subsequently changed
in accordance with the rules or regulations issued by the Internal Revenue
Service or the Department of Labor, shall be the 12 month period beginning
April 1 of a given calendar year and ending on March 31st of the following
calendar year.
(25) "Rollover Contributions" shall mean the amounts of Rollover
Contributions, if any, made by an Employee to the Plan, as more fully
described in Section 3.2 hereof.
(26) "Rollover Contribution Account" shall mean the balance credited
to the account of the Participant to reflect his interest in the Trust Fund
that is attributable to his Rollover Contributions, if any, to the Plan as
described in Section 3.2 hereof. The Rollover Contribution Account shall be
divided into such subaccounts as are required to reflect the Participant's
interest in the various Investment Funds, as described in Section 5 hereof.
(27) "Salary Deferral Contributions" shall mean the contributions made
by the Employer on behalf of the Participant pursuant to Section 3.1
hereof. "Matched Salary Deferral Contributions" shall mean Salary Deferral
Contributions that are not in excess of 2% of the Participant's
Compensation for the Plan Year. "Unmatched Salary Deferral Contributions"
shall mean Salary Deferral Contributions that are in excess of 2% of the
Participant's Compensation for the Plan Year.
(28) "Salary Deferral Contribution Account" shall mean the balance
credited to the individual account of the Participant to reflect his
interest in the Trust Fund that is attributable to his Salary Deferral
Contributions to the Plan. If applicable, the Salary Deferral Contribution
Account shall be divided into such subaccounts as are required to reflect
the Participant's interest in the various Investment Funds, as described in
Section 5 hereof.
(29) "Salary Reduction Agreement" means an agreement between a
Participant and the Employer under which the Employer reduces the
Participant's Compensation and the Employer contributes the amount of the
26
reduction to the Plan on behalf of the Participant as a Salary Deferral
Contribution.
(30) "Supplement" shall mean any Supplement that is attached to and
made a part of the Plan and which describes provisions or modifications to
the Plan which apply only to those employees of an Employer or Employers
specified in such supplement.
(31) "Total and Permanent Disability" means disability which, in the
opinion of the Committee, causes a Participant to be totally and presumably
permanently disabled, due to sickness or injury, so as to be completely
unable to perform any and every duty pertaining to his occupation from a
cause other than specified below:
(a) Excessive and habitual use by the Participant of drugs,
intoxicants or narcotics;
(b) Injury or disease sustained by the Participant while
willfully and illegally participating in fights, riots, civil insurrections
or while committing a felony;
(c) Injury or disease sustained by the Participant while
serving in any armed forces;
(d) Injury or disease sustained by the Participant diagnosed or
discovered subsequent to the date his service has terminated;
(e) Injury or disease sustained by the Participant while
working for anyone other than the Employer and arising out of such
employment; or
(f) Injury or disease sustained by the Participant as a result
of an act of war, whether or not such act arises from a formally declare
state of war.
(32) "Trust" and "Trust Fund" shall mean the trust fund established
pursuant to the terms of the Trust Agreement.
(33) "Trust Agreement" shall mean the Retirement Savings Trust of
Tyson Foods, Inc., adopted effective as of October 1, 1987, as set forth in
the agreement of that title to which the Plan is attached and as it may
thereafter be amended from time to time.
(34) "Trustee" shall mean the corporate trustee or trustees or the
individual trustee or trustees, as the case may be, appointed from time to
time pursuant to the provisions of the Trust Agreement to administer the
Trust Fund maintained for the purposes of the Plan.
(35) "Unallocated Limitation Account" shall mean that portion of the
Employer's Contribution, if any, which is being held unallocated due to the
provisions of Section 7.2 hereof.
(36) "Valuation Date", effective for the Plan Year quarter beginning
January 1, 1993, shall mean the last day of the months of March, June,
September and December.
(37) "Year of Service" means each twelve consecutive month period
during which a Non-Maritime Employee has at least one thousand (1,000)
Hours of Service, or, in the case of a Maritime Employee, 125 Days of
Service. For determining an Employee's eligibility under the Plan, his
"eligibility computation period" shall begin on the "employment
commencement date" for such Employee; thereafter, the eligibility
computation period shall be the "Plan Year", beginning with the Plan Year
which includes the first anniversary of a Participant's employment
commencement date. For determining a member's vested and nonforfeitable
interest in his Employer Contribution Account, the "vesting computation
period" shall be the Plan Year. For purposes of determining vesting,
eligibility to participate and Employer Matching Contributions under the
Plan, Years of Service with a "Controlled Group Member" (as defined above)
and Years of Service with Holly Farms Corporation or any of its
subsidiaries or affiliates that at any time were included in the
27
"controlled group of corporations" (as defined in Code 414(b)) with such
corporation shall be included. Otherwise, there shall not be counted any
Hours of Service or Days of Service for an employee of an employer which is
a party to a merger, acquisition or other business combination under which
the Company or any of its subsidiaries is the acquiring party, prior to the
date of such merger, acquisition or other business combination unless
specifically provided otherwise in the contracts governing such merger,
acquisition or combination or required by 414(a) of the Code and any
Regulations promulgated thereunder. For purposes of determining Years of
Service for any Employee who may be both a Maritime Employee and a Non-
Maritime Employee in any computation period, such determination shall be
made as if the Employee were a Non-Maritime Employee and in determining the
Employee's Hours of Service for such period, the Employee's Days of Service
shall be multiplied by eight (8) and then added to the Employee's Hours of
Service credited while a Non-Maritime Employee.
(38) "Day of Service" means:
(a) Each day for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These days shall
be credited to the Employee for the computation period in which the duties
are performed; and
(b) Each day for which an Employee is paid, or entitled to
payment, by the 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. Days
under this subparagraph (b) shall be calculated and credited pursuant to
2530.200(b)-7 of the Department of Labor Regulations which are incorporated
herein by this reference; and
(c) Each day for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same days of
service shall not be credited both under subparagraph (a) or (b), as the
case may be, and under this subparagraph (c). These days shall be credited
to the Employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made.
(B) The terms "herein," "hereof," "hereunder" and similar terms refer
to this document, including the Trust Agreement of which this document is a
part, unless otherwise qualified by the context.
(C) The pronouns "he," "him" and "his" used in the Plan shall also
refer to similar pronouns of the feminine gender unles s otherwise
qualified by the context.
SECTION 2
PARTICIPATION
2.1 ELIGIBILITY FOR INITIAL PARTICIPATION
Each Employee shall become a Participant in the Plan on the first
Entry Date (as defined above) following the date the Employee becomes an
"Eligible Employee," as defined hereafter. For purposes of this Plan, an
"Eligible Employee" shall mean an Employee who has completed a Year of
Service (as defined above); provided, however, that there shall be excluded
from the definition of Eligible Employee (i) any Employee who is a member
of a collective bargaining unit and who is covered by a collective
bargaining agreement which does not provide for coverage of such Employee
under this Plan, (ii) any Highly Compensated Employee who, as of April 1 of
any Plan Year, is determined by the Company to be eligible to participate
28
in the Company's Executive Savings Plan, and (iii) any leased employee
within the meaning of 414(n) and (o) of the Code.
2.2 ACTIVE PARTICIPATION
Each Eligible Employee in the service of the Employer on or after the
Effective Date of the Plan may elect to become an Active Participant in the
Plan as of the date on which he first becomes a Participant by completing
and filing a written application for Active Participation in the Plan with
the Committee in which he agrees to make the Salary Deferral Contributions
as described in Section 3.1(A) hereof. Each Eligible Employee who
completes and files such application with the Committee on or prior to the
date as of which he first becomes a Participant in the Plan (or as of such
later date as is administratively practicable with respect to any such
Eligible Employee on the Effective Date of the Plan) shall become an Active
Participant in the Plan as of the date on which he first becomes a
Participant. Each Eligible Employee who does not become an Active
Participant in the Plan as of the date on which he first becomes a
Participant may become an Active Participant in the Plan as of the first
day of any subsequent payroll period by completing and filing such
application for participation in the Plan with the Committee at least 30
days prior to such applicable date.
2.3 LEAVE OF ABSENCE AND TERMINATION OF SERVICE
(A) Any absence from the active service of the Employer by reason of
an approved absence granted by the Employer because of accident, illness,
layoff with the right of recall or military service, or for any other
reason on the basis of a uniform policy applied by the Employer without
discrimination, will be considered a leave of absence for the purposes of
the Plan and will not terminate an Employee's service provided he returns
to the active service of the Employer at or prior to the expiration of his
leave or, if not specified therein, within the period of time which accords
with the Employer's policy with respect to permitted absences.
Absence from the active service of the Employer because of compulsory
engagement in military service will be considered a leave of absence
granted by the Employer and will not terminate the service of an Employee
if he returns to the active service of the Employer within the period of
time during which he has reemployment rights under any applicable Federal
law or within 90 days from and after discharge or separation from such
compulsory engagement if no Federal law is applicable. No provision of
this section or in the Plan shall require reemployment of any employee
whose active service with the Employer was terminated by reason of military
service.
If the Employee does not return to the active service of the Employer
at or prior to the expiration of his leave of absence as above defined, his
service will be considered terminated as of the earliest of (i) the date on
which his leave expired, (ii) the first anniversary of the date on which
the leave began or (iii) the date of his retirement, quit, discharge,
resignation or death.
In the event that an Employee's service with the Employer is
interrupted because of any absence from the active service of the Employer
which is not deemed a leave of absence as defined above, his service will
be considered terminated as of the date of his retirement, quit, discharge,
resignation or death or, if his service is interrupted for any other
reason, as of the first anniversary of the date on which he was first
absent from the active service of the Employer.
Transfers of an Employee's service among the Employer and Designated
Nonparticipating Employers shall not be deemed interruptions of his service
29
and shall not constitute a termination of service for the purposes of the
Plan.
(B) For any Employee who is absent from work by reason of (i) the
pregnancy of the Employee; (ii) the birth of a child of the Employee; (iii)
the placement of a child with the Employee in connection with the adoption
of such child by the Employee; or (iv) for purposes of caring for a child
for a period beginning immediately following the birth or placement of such
child, the Plan shall treat as Hours of Service, for determining a Break in
Service for purposes of eligibility and vesting, the Hours of Service which
otherwise would have been normally credited to the Employee, but for such
absence or, in the event the Plan is unable to determine the Hours of
Service normally to be credited, eight (8) Hours of Service per day of such
absence.
(C) Except as otherwise required by applicable federal and state
law, the total number of hours treated as Hours of Service under this
section shall not exceed 501 hours and the total number of days treated as
Days of Service shall not exceed 63 days. The Hours of Service or Days of
Service attributable to an Employee shall be credited to the Employee in
the Plan Year in which begins the absence from work if the Employee would
be prevented from incurring a Break in Service. In any other case, such
Hours of Service or Days of Service shall be credited in the immediately
following year.
In the discretion of the Trustee, an Employee may be required to
furnish information that the absence from work qualifies under this section
and/or the number of days or weeks of such absence.
2.4 PARTICIPATION FOLLOWING REEMPLOYMENT
(A) Each Employee whose service is terminated and who is subsequently
reemployed by the Employer shall be treated under the Plan upon such
reemployment as though he then first entered the employment of the
Employer; except that:
(1) if he was previously a Participant in the Plan or if he had
met the service requirements for participation in the Plan as of his
previous date of termination of service, he shall be deemed for the
purposes of Section 2.1 hereof to have met the service requirements for
participation in the Plan as of his date of reemployment if he is
reemployed prior to April 1, 1993; and
(2) effective April 1, 1993, if an Employee who has incurred a
Break in Service subsequently is reemployed on or after April 1, 1993, his
Years of Service before such break shall not be required to be taken into
account for eligibility purposes until the Employee has completed a new
Year of Service following such break; provided, that if such Employee was a
Participant at the time of such Break in Service, then upon completion of
the new Year of Service, he will be treated as a Participant retroactively
from his date of reemployment, but not for purposes of making deferrals or
sharing in any Employer contributions for any payroll period ending prior
to the date he completes such new Year of Service.
(B) Except as provided in Section 8.10 hereof with respect to
certain permissible in-service withdrawals, respectively, no further
distributions shall be made from the individual accounts on and after the
date of reemployment and prior to the next following Initial Distribution
Date of any Participant described in Section 2.4(A) above who is reemployed
prior to having received his total distribution. Any such previously
undistributed individual account (or accounts) shall be maintained on
behalf of the Participant on and after his date of reemployment and shall
be subject to adjustment on each following Valuation Date as specified in
Section 7.1 hereof.
30
(C) Any such Participant to whom the provisions of this Section 2.4
apply who was not entitled, for any reason, to an allocation under the
provisions of Section 7.4 hereof on the Accounting Dates, if applicable,
which occurred between the date of his termination of service and his date
of reemployment, shall not be entitled to a retroactive allocation under
such section solely because of the provisions of this Section 2.4.
(D) The rights of any terminated employee of a Designated
Nonparticipating Employer who is reemployed by an Employer as an Employee
shall be determined in accordance with the provisions of the Plan in the
same manner as though he had been an Employee of the Employer on the date
of termination of his service; and the rights of any terminated Employee of
an Employer who is reemployed by a Designated Nonparticipating Employer
shall be determined in accordance with the provisions of the Plan in the
same manner as though such Employee had been reemployed by the Employer and
had immediately thereafter been transferred to such Designated
Nonparticipating Employer.
2.5 RIGHTS OF OTHER EMPLOYERS TO PARTICIPATE IN THE PLAN
(A) Any other corporation, association, joint venture,
proprietorship, or partnership may, in the future, adopt the Plan by
written action on its part in the manner described in Section 11.7 hereof
provided that the board of directors of the Company and the Committee both
approve such participation.
(B) The administrative powers and control of the board of directors
of the Company, as provided in the Plan, shall not be deemed diminished
under the Plan by reason of participation of any other Employers in the
Plan, and such administrative powers and control specifically granted
herein to the board of directors of the Company with respect to the
appointment of the Committee, amendment of the Plan and other matters shall
apply only with respect to the board of directors of the Company.
(C) The Plan is a single plan with respect to all Employers unless
the board of directors of the Company specifically provides that the Plan
shall be a separate plan with respect to any Employer or group of
Employers.
(D) Any Employer may withdraw at any time without affecting the
other Employers in the Plan by furnishing written notice to the Committee
and the Trustee of its determination to withdraw. The board of directors
of the Company may in its absolute discretion terminate any Employer's
participation at any time.
2.6 PARTICIPATION AND BENEFITS FOR PARTICIPANTS TRANSFERRED TO OR FROM
STATUS AS AN EMPLOYEE
It is contemplated that a Participant in the Plan may be transferred
to a Designated Nonparticipating Employer so that he will no longer qualify
as an Employee as defined herein, and, conversely, that a person in the
employment of a Designated Nonparticipating Employer may be transferred to
the status of an Employee as defined herein. The service of such a person
described above shall not be considered to be interrupted or terminated by
reason of any such transfer and a termination of service with the
Designated Nonparticipating Employer while not qualified as an Employee
shall be treated in the same manner as a termination of service with an
Employer while qualified as an Employee. In determining eligibility for
participation in the Plan of such an Employee with respect to whom the
provisions of this Section 2.6 are applicable, any period of employment,
which otherwise would be included in accordance with the provisions of
Section 2.1 hereof, which he accrued with the Designated Nonparticipating
Employers while not qualified as an Employee as defined herein shall be
31
included; provided, however, that any such person transferred to the status
of an Employee shall not be eligible to become a Participant in the Plan
prior to the date on which he becomes an Employee as defined herein. The
accounts of any such Participant who has been transferred from the status
of an Employee shall be maintained on his behalf during the period that he
is in the employment of the Employer or Designated Nonparticipating
Employer while not qualified as an Employee in the same manner as though
the Participant were on an unpaid leave of absence granted by the Employer
during such period, but he shall not be eligible to make Salary Deferral
Contributions for any period subsequent to his date of change in status and
while he is not an Employee as defined herein.
SECTION 3
SALARY DEFERRAL CONTRIBUTIONS
AND ROLLOVER CONTRIBUTIONS
3.1 SALARY DEFERRAL CONTRIBUTIONS
(A) Amount of Salary Deferral Contributions: Subject to Section
3.1(E) below and to such rules of uniform application as the Committee may
adopt, each Eligible Employee, in order to become and remain an Active
Participant in the Plan, must elect to have the Employer make Salary
Deferral Contributions through payroll deduction on his behalf pursuant to
a Salary Reduction Agreement of any amount that is an integral percentage
of not less than 2% nor more than 15% of his Compensation for the
applicable payroll period; provided, however, any such Participant's Salary
Deferral Contributions shall not exceed (i) an amount which would cause his
annual addition to exceed the maximum amount of annual addition which may
be made for the Limitation Year under Section 7.2 hereof, or (ii) $7,000
(as adjusted from time to time by the Secretary of the Treasury at the same
time and in the same manner as under 415(d) of the Code) for any calendar
year. Salary Deferral Contributions that are not in excess of 2% of the
Participant's Compensation for the Plan Year are referred to herein as
"Matched Salary Deferral Contributions" and are matched by the Employer's
Contribution to the extent specified in Section 4.1 hereof. Salary
Deferral Contributions that are in excess of 2% of the Participant's
Compensation for the Plan Year are referred to herein as "Unmatched Salary
Deferral Contributions" and are not matched by the Employer's Contribution.
(B) Initial Authorization for Salary Deferral Contributions: All
Salary Reduction Agreements shall be in writing and Salary Deferral
Contributions made pursuant to such agreement shall be authorized in
writing by the Participant and shall be filed with the Committee. Any such
Salary Reduction Agreement shall continue in effect for as long as the
Participant remains an Employee or until he elects to suspend or change his
rate of Salary Deferral Contributions to the Plan as provided in Section
3.1(C) below.
(C) Right of Participant to Suspend or Change His Rate of Salary
Deferral Contributions: Except as set forth below, a Participant may
suspend or change his rate of his Salary Deferral Contributions effective
as soon as administratively practicable as of the end of any subsequent
payroll period; however, a Participant may change his deferral rate only
twice in any calendar year without the consent of the Committee, and except
as provided in Section 3.1(E) below with respect to certain required
suspensions, a Participant who suspends his Salary Deferral Contributions
may not resume such contributions for a period of six months following the
effective date of such suspension. Any such change of rate, suspension or
resumption of Salary Deferral Contributions must be made by the Participant
32
in writing filed with the Committee at least 30 days prior to the effective
date of the change, suspension or resumption. A Participant whose Salary
Deferral Contributions are suspended during a period of leave of absence or
who is reemployed following a termination of service may elect, upon his
return to active employment with the Employer, to have the Employer resume
Salary Deferral Contributions on his behalf to the Plan. Any such election
shall be in writing filed with the Committee and shall specify the
percentage of Salary Deferral Contributions to be deducted from his
Compensation.
(D) Crediting and Depositing Salary Deferral Contributions: The
Salary Deferral Contributions to the Plan shall be paid by the Employer to
the Trustee as promptly as practicable after they are deducted from the
Participant's Compensation (but in any event not later than 30 days after
the close of the Plan Year for which the contributions are deemed to be
made) and shall be credited to the Participant's Salary Deferral
Contribution Account as of the Accounting Date next following the date the
contributions were deducted in accordance with Section 7.3 hereof. The
Participant's Salary Deferral Contribution Account shall at all times be
100% vested and, except as provided in Section 8.10 hereof with respect to
certain permissible in-service withdrawals, Section 14 with respect to Plan
Loans and Section 11.4 with respect to termination or partial termination
of the Plan, distribution of such account shall be made upon termination of
his service in accordance with the provisions of Section 8 hereof.
(E) Salary Deferral Contributions Subject to Nondiscrimination
Requirements of 401(k) of the Code: For any given Plan Year the "average
deferral percentage" (as defined herein) for all Eligible Employees who are
Highly Compensated Employees for such Plan Year may not exceed the greater
of:
(a) One and one-quarter (1.25) times the "average deferral
percentage" for all Eligible Employees who are Non-highly Compensated
Employees for such Plan Year; or
(b) Two (2.0) times the "average deferral percentage" for all
Eligible Employees who are Non-highly Compensated Employees for such Plan
Year, but not more than the sum of (i) 2% and (ii) the "average deferral
percentage" for all Eligible Employees who are Non-highly Compensated
Employees.
An individual "deferral percentage" is calculated for each Eligible
Employee each Plan Year by dividing his Salary Deferral Contributions, if
any, to the Plan during the Plan Year by his Compensation for the Plan for
the Plan Year. Effective April 1, 1993, an Eligible Employee's
Compensation for the purposes of calculating his deferral percentage will
include only such Compensation earned after becoming a Participant in the
Plan. The "average deferral percentage" for the Highly Compensated
Employees and the "average deferral percentage" for the Non-highly
Compensated Employees are then determined by adding up the individual
deferral percentages for the applicable group and dividing by the number of
Eligible Employees in such is Section 3.1(E), Eligible Employee includes
any Employee eligible to elect to have Salary Deferral Contributions
withheld from his compensation pursuant to Section 3.1(A) above, whether or
not such election is exercised.
If the Committee determines that a Participant's Salary Deferral
Contributions under Section 3.1(A) hereof for any Plan Year would cause the
Plan to fail to meet the nondiscrimination requirements of this subsection
(E) or 401(k) of the Code and the regulations thereunder, then the
Committee shall take any or all of the following preventive measures as, in
its sole discretion, it deems necessary to avoid such discrimination:
33
(1) From time to time during such Plan Year, reduce (or
suspend, if necessary) the rate of Salary Deferral Contributions for the
remainder of the Plan Year of those Active Participants who are Highly
Compensated Employees (such reduction first to apply to the highest rate on
a uniform basis to all such Active Participants who are contributing the
highest rate, and so on, in descending order from the highest rate); or
(2) Distribute any Excess Deferrals (defined herein) plus any
income allocable thereto, no later than the last day of the Plan Year
immediately following the Plan Year in which such Excess Deferrals were
made, to those Highly Compensated Employees to whose accounts Salary
Deferral Contributions were allocated for such Plan Year in which the
excess occurred, on the basis of their respective portions of the Excess
Deferrals attributable to each of such Employees. Such distribution must
be designated by the Employer as a distribution of Excess Deferrals and
allocable income. "Excess Deferrals" shall mean, with respect to any Plan
Year, the aggregate amount of Salary Deferral Contributions actually paid
over to the Trust on behalf of Highly Compensated Employees for such Plan
Year, over the maximum amount of such contributions permitted under this
subsection (E), determined by reducing deferrals made on behalf of Highly
Compensated Employees in order of the actual deferral percentages beginning
with the highest of such percentages. ANY EMPLOYER CONTRIBUTIONS
DETERMINED UNDER SECTION 4.1(B) BELOW MADE OR ALLOCATED ON ACCOUNT OF AN
EXCESS DEFERRAL SHALL BE FORFEITED AND APPLIED TO REDUCE FUTURE EMPLOYER
CONTRIBUTIONS UNDER SECTION 4.1(B); SUCH FORFEITURE SHALL BE EFFECTED PRIOR
TO THE APPLICATION OF SECTION 4.1(D) BELOW. Excess Deferrals shall be
treated as Annual Additions under Section 7.2 of the Plan; or
(3) Take such other action as may be permissible under
regulations published under 401(k) of the Code to avoid such
discrimination.
The Committee shall establish such rules and give such directions to
the Trustee as shall be appropriate to carry out the above provisions of
this section. In any event, the following special rules shall be
applicable in administering the provisions of this subsection (E):
(w) The deferral percentage for any Participant who is a
Highly Compensated Employee for the Plan Year and who is eligible to have
Salary Deferral Contributions allocated to his account under two or more
arrangements described in 401(k) of the Code that are maintained by the
Employer, shall be determined as if such Contributions were made under a
single arrangement.
(x) If two or more plans which include arrangements described
in Code 401(k) are aggregated for purposes of 401(a)(4) or 410(b), such
arrangements shall be treated as one such arrangement.
(y) For purposes of determining the deferral percentage of a
Participant who is a 5% Owner (as defined in Code 416(i)(1)) or one of the
ten most highly paid Highly Compensated Employees, the Salary Deferral
Contributions and Compensation of such Participant shall include the Salary
Deferral Contributions and Compensation of Family Members (as defined in
Code 414(q)(6)(B)), and such Family Members shall be disregarded as
separate Employees in determining the deferral percentage for such
Participants. In the case of a Highly Compensated Employee whose deferral
percentage is determined under this family aggregation rule, the
determination and correction of Excess Deferrals shall be according to
Regulation 1.401(k)-1(f)(5)(ii).
(z) The income allocable to Excess Deferrals is equal to the
sum of the allocable gain or loss (i) for the Plan Year and (ii) for the
period between the end of the Plan Year and the date of distribution (the
"gap period") and shall include unrealized appreciation in assets held in
34
the Trust Fund. The income allocable to Excess Deferrals for the Plan Year
shall be determined by multiplying the income allocable to the
Participant's Salary Deferral Contributions for the Plan Year by a
fraction, the numerator of which is the Excess Deferrals on behalf of the
Participant for the preceding Plan Year and the denominator of which is the
Participant's total account balance attributable to Salary Deferral
Contributions on the last day of the preceding Plan Year, reduced by the
gain allocable to such total amount for the Plan Year and increased by the
loss allocable to such total amount for the Plan Year. The income
allocable to Excess Deferrals for the gap period shall be determined in
accordance with the Safe Harbor Method referred to in the Treasury
regulations under 401(k) of the Code.
3.2 ROLLOVER CONTRIBUTIONS
(A) Type of Rollovers Permitted Under Plan: The Committee shall
direct the Trustee to accept a Rollover Contribution from or on behalf of
an Employee eligible to receive an "eligible rollover distribution" (within
the meaning of 402(c)(4), 403(a)(4) and 408(d)(3) of the Code). The
Rollover Contribution shall be accepted whether received from the Employee
or transferred directly from another "eligible retirement plan" as defined
in 402(c)(8) of the Code. The rollover of all or any part of an eligible
rollover distribution shall be in accordance with the provisions of 402(c)
of the Code, and other applicable laws and regulations, including
Regulation 1-411(d)-4, Q&A-3(b)(1), and the Committee may require whatever
evidence or information from the Employee as it may deem necessary to
comply with said laws and regulations. However, the Committee shall not
accept any part of an eligible rollover distribution which consists of
assets which are other than (i) cash or equivalents or (ii) assets which
are identical to those which Participants may direct the Trustee to
purchase under the terms of the Plan, if applicable. An Employee need not
be an Active Participant in order to make a Rollover Contribution and in
the event that a Rollover Contribution is accepted on behalf of an Employee
prior to the date that he becomes an Active Participant in the Plan, he
shall be treated as a Participant as of the date of acceptance by the
Committee of such Rollover Contribution, but his benefits under the Plan
prior to the date he actually becomes an Active Participant in accordance
with Section 2.2 hereof shall be limited to the balance credited to his
Rollover Contribution Account. Any such Rollover Contribution Account
maintained on behalf of a Participant prior to the date he actually becomes
an Active Participant shall be included with the other Rollover
Contribution Accounts for the purposes of Section 7.1 hereof.
(B) Application to Committee: The Employee shall make application
for the rollover in writing to the Committee on forms approved and
designated by the Committee.
(C) Acceptance by Committee: Contributions under Section 3.2(A)
above so accepted as a rollover to the Plan shall be commingled with the
assets of the Trust Fund and shall be managed according to the terms of the
Trust Agreement; provided, however, that, unless the date of acceptance of
the Rollover Contribution coincides with a Valuation Date, the Trustee may
hold any such Rollover Contribution in a separate interest bearing account
in the Trust Fund until the next following Valuation Date. Prior to the
commingling of any such Rollover Contribution with the other assets of the
Trust Fund, the Trustee, in its sole discretion, may hold the Rollover
Contribution in cash separately in the Trust Fund without liability for
interest for a limited period pending investment if it is deemed necessary
or desirable.
35
(D) Separate Account: The Committee shall establish and maintain
(or cause to be maintained) a separate account, called the "Rollover
Contribution Account," for each Employee for whom a Rollover Contribution
is accepted, and the Participant shall be credited immediately with a fully
(100%) vested interest in the amount represented by the Rollover
Contribution so accepted. The Rollover Contribution Account will reflect
the Participant's interest in the funds credited on his behalf under the
Plan as a result of his Rollover Contribution.
SECTION 4
EMPLOYER'S CONTRIBUTIONS
4.1 AMOUNT OF EMPLOYER'S CONTRIBUTIONS
(A) Subject to the right reserved by the Employer to modify, amend
or terminate the Plan, as provided in Sections 11.3 and 11.4 hereof, and
subject to the limitations set forth in Section 4.1(D) below, each Employer
(or, with respect to a group of Employers, if any, with respect to which
the Plan represents a single plan who file a consolidated tax return, the
group of such Employers) shall make a contribution (or combined
contribution) each Plan Year to the Trustee in an amount determined in (B)
below.
(B) The Employer's Contributions for the Plan Year shall include a
monthly "Regular Matching Contribution" which shall apply to those Active
Participants in the Plan during the current Plan Year who made Salary
Deferral Contributions to the Plan during such Plan Year. The amount of
such contribution to any Participant shall be dependent upon the
Participant's number of Years of Service (determined on the same basis used
to determine eligibility), except that for Plan Years beginning April 1,
1991 and thereafter, a Participant's Years of Service for purposes of
determining the amount of his Regular Matching Contribution shall not
include his Years of Service prior to his incurring a Break in Service on
or after April 1, 1991. For Participants with less than five (5) Years of
Service, the Employer's Regular Matching Contribution shall be an amount
equal to 50% of the Participant's Matched Salary Deferral Contributions
made during the Plan Year. For Participants with five (5) or more Years or
Service, the Employer's Regular Matching Contribution shall be an amount
equal to 100% of the Participant's Matched Salary Deferral Contributions
made during the Plan Year. In any event,however, any Participant whose
Salary Deferral Contributions for any calendar year equal the dollar
limitation set forth in Section 3.1(A) (initially $7,000) and who either
(i) is employed on December 31 of such calendar year or (ii) terminated
employment during such calendar year due to death, disability or retirement
shall receive a Regular Matching Contribution (determined in accordance
with the matching percentages set forth in the preceding sentence based on
Years of Service) based on 2% of the Participant's Compensation for such
calendar year. Additionally, at the sole discretion of such Employer (or
group of Employers), the Employer's Contributions for the Plan Year may
include an annual "Additional Matching Contribution" which shall apply to
those Active Participants in the Plan during the current Plan Year who made
Salary Deferral Contributions to the Plan during the current Plan Year and
who are entitled to share in the Employer's Contributions for the Plan Year
as provided in Section 7.4 hereof, and shall be an amount which the
Employer (or with respect to such a group of Employers, the board of
directors of the parent corporation) authorizes and announces in writing
before the due date for filing its Federal income tax return (including any
extension thereof) for the applicable fiscal years; provided, however, that
36
the Employer's Contributions on behalf of any Participant for any Plan Year
may be reduced if required and to the extent necessary to lower his annual
addition for the Limitation Year to such amount as is permissible under
Section 7.2 hereof; and provided further, however, that the Employer's
Contributions for any Plan Year shall not exceed the maximum amount of
contribution permitted by law as a tax deductible expense for the
applicable fiscal year as provided in 404 of the Code, or any other
applicable provisions of said Code.
(C) The Regular Matching Contributions shall be paid by the
Employer to the Trustee as promptly as practicable after the corresponding
Matched Salary Deferral Contributions are paid to the Trustee pursuant to
Section 3.1 (D) above (but in any event not later than thirty (30) days
after the close of the Plan Year for which the contributions are deemed to
be made. Any Additional Matching Contribution made by the Employer for the
Plan Year shall be deemed to have been made on the last Accounting Date of
the Plan Year irrespective of when such contributions are actually turned
over to the Trust Fund for such Plan Year.
(D) Employer Matching Contributions Subject to Nondiscrimination
Requirements of 401(m) of the Code. For any given Plan Year, the "average
contribution percentage" (as defined herein) for all Eligible Employees who
are Highly Compensated Employees for such Plan Year may not exceed the
greater of:
(a) One and one-quarter (1.25) times the "average contribution
percentage" for all Eligible Employees who are Non-highly Compensated
Employees for such Plan Year; or
(b) Two (2.0) times the "average contribution percentage" for
all eligible Employees who are Non-highly Compensated Employees for such
Plan Year, but not more than the sum of (i) 2% and (ii) the "average
contribution percentage" for all Eligible Employees who are Non-highly
Compensated Employees.
An individual "contribution percentage" is calculated for each Eligible
Employee each Plan Year by dividing the total of his Employer Contributions
determined under Section 4.1(B) and allocated to him under Section 7.4, if
any, during the Plan Year by his Compensation for the Plan Year. Effective
April 1, 1993, an Eligible Employee's Compensation for purposes of
calculating his contribution percentage will include only such Compensation
earned after becoming a Participant in the Plan. The "average contribution
percentage" for the Non-highly Compensated Employees are then determined by
adding up the individual contribution percentages for the applicable group
and dividing the number of Eligible Employees in such group. For purposes
of this Section 4.1(D), Eligible Employee includes any Employee eligible to
elect to have Salary Deferral Contributions withheld from his compensation
pursuant to Section 3.1(A) above, whether or not such election is
exercised.
If the Committee determines that a Participant's Employer
Contributions under Section 4.1(B) hereof for any Plan Year would cause the
Plan to fail to meet the nondiscrimination requirements of this subsection
(D) or 401(m) of the Code and the regulations thereunder (including
Regulation 1-401(m)-2(b)), then the Committee (subject to the order of
priority specified below in subparagraph (2)) shall take any or all of the
following preventive measures as, in its sole discretion, it deems
necessary to avoid such discrimination:
(1) From time to time reduce (or suspend, if necessary) the
rate of discretionary Employer Contributions under Section 4.1(B) hereof
for the remainder of the Plan Year of those Active Participants who are
Highly Compensated Employees (such reduction first to apply to the highest
37
rate on a uniform basis to all such Active Participants who are receiving
the highest percentage of Employer Contributions under Section 4.1(B), and
so on, in descending order from the highest percentage); or
(2) Excess Contributions (as defined herein) plus any income
allocable thereto, first shall be forfeited, if forfeitable, or if not
forfeitable, distributed no later than the last day of the Plan Year
immediately following the Plan Year in which such Excess Contributions were
made, to those Highly Compensated Employees to whose accounts Employer
Contributions were allocated for such Plan Year in which the excess
occurred, on the basis of their respective portions of the Excess
Contributions attributable to each of such Employees. Such distributions
must be designated by the Employer as a distribution of Excess
Contributions and allocable income. "Excess Contributions" shall mean,
with respect to any Plan Year, the aggregate amount of Employer
Contributions actually paid over to the Trust on behalf of Highly
Compensated Employees for such Plan Year, over the maximum amount of such
contributions permitted under this subsection (D), determined by reducing
Employer Contributions made on behalf of Highly Compensated Employees in
order of the actual contribution percentages beginning with the highest of
such percentages. Excess Contributions shall be treated as Annual
Additions under Section 7.2 of the Plan. The extent to which a
Participant's Excess Contribution shall be forfeitable under this
subparagraph (2) shall be determined by multiplying the total amount of
such Excess Contribution by the Participant's non-vested percentage
determined in accordance with Section 4.3 of the Plan. Forfeitures of
Excess Contributions shall be applied to reduce future Employer
Contributions under Section 4.1; or
(3) Take such other action as may be permissible under
regulations published under 401(m) of the Code to avoid such
discrimination. The Committee shall establish such rules and give such
directions to the Trustee as shall be appropriate to carry out the above
provisions of this section. In any event, the following special rules
shall be applicable in administering the provisions of this subsection (D):
(a) The contribution percentage for any Participant who is a
Highly Compensated Employee and who is eligible to participate in two or
more plans that are maintained by the Employer to which employee
contributions, matching contributions, or both, are made, shall be
determined as if such contributions were made under a single plan.
(b) In the event that the Plan satisfies the requirements of
410(b) of the Code only if aggregated with one or more other plans, or if
one or more other plans satisfy the requirements of 410(b) of the Code only
if aggregated with this Plan, then this section shall be applied by
determining the contribution percentages of Participants as if all such
plans were a single plan.
(c) For purposes of determining the contribution percentage of
a Participant who is a 5% owner (as defined in Code 416(i)(1)) or one of
the ten (10) most highly-paid Highly Compensated Employees, the Employer
Matching Contributions and Compensation of such Participant shall include
the Employer Matching Contributions and the Compensation of Family Members
(as defined in Code 414(q)(6)(B)), and such Family Members shall be
disregarded as separate Employees in determining the contribution
percentage for such Participants. In the case of a Highly Compensated
Employee whose contribution percentage is determined under this family
aggregation rule, the determination andcorrection of Excess Contributions
shall be according to Regulation 1-401(m)-1(e)(2)(iii).
(d) The income allocable to Excess Contributions is equal to
the sum of the allocable gains or loss (i) for the Plan Year and (ii) for
38
the period between the end of the Plan Year and the date of distribution
(the "gap period") and shall include unrealized appreciation in assets held
in the Trust Fund. The income allocable to Excess Contributions shall be
determined by multiplying the income or loss allocable to the Participant's
Employer Contributions for the Plan Year by a fraction, the numerator of
which is the Excess Contributions on behalf of the Participant for the
preceding Plan Year and the denominator of which is the Participant's total
account balance attributable to Employer Contributions on the last day of
the preceding Plan Year, reduced by gain allocable to such total amount for
the Plan Year and increased by the loss allocable to such total amount for
the Plan Year. The income allocable to Excess Contributions for the gap
period shall be determined in accordance with the Safe Harbor Method
referred to in the Treasury regulations under 401(m) of the Code.
(e) The determination of Excess Contributions under this
Section 4.1(D) shall be made only after first determining the amount, if
any, of Excess Deferrals under Section 3.1(E) above.
4.2 LIMITATION ON USE OF "TWO TIMES" TEST.
(A) Limitation Described. In no event may the sum of: (i) the average
deferral percentages of Highly Compensated Employees, as determined under
Section 3.1(E), and (ii) the average contribution percentages of Highly
Compensated Employees, as determined under Section 4.1(D), exceed the
"Aggregate Limit".
(B) Aggregate Limit Defined. The "Aggregate Limit" is the greater of:
(1) The sum of:
(a) 1.25 times the greater of: (i) the average
deferral percentage of Employees who are Non-highly Compensated Employees
as determined under Section 3.1(E), or (ii) the Average Contribution
Percentage of Employees who are Non-highly Compensated Employees as
determined under Section 4.1(D), plus
(b) Two percentage points plus the lesser of the
amounts described in clause (1)(a)(i) and (1)(a)(ii) above, but not to
exceed 200 percent of the lesser of the amounts described in clause
(1)(a)(i) and (1)(a)(ii) above; or
(2) The sum of:
(a) 1.25 times the lesser of: (i) the average
deferral percentage of Employees who are Non-highly Compensated Employees
as determined under Section 3.1(E), or (ii) the Average Contribution
Percentage of Employees who are Non-highly Compensated Employees as
determined under Section 4.1(D), plus
(b) Two percentage points plus the greater of the
amounts described in clause (2)(a)(i) and (2)(a)(ii) above, but not to
exceed 200 percent of the greater of the amounts described in clause
(2)(a)(i) and (2)(a)(ii) above.
4.3 VESTING OF EMPLOYER CONTRIBUTION ACCOUNT
Except as hereinafter provided, the amount credited to the Employer
Contribution Account of each Participant shall become vested and
nonforfeitable based upon his number of Years of Service (as defined above)
in the percentage indicated as follows:
Years of Service Percentage Vested
Less than 2 years 0%
2 years 20%
3 years 40%
4 years 60%
5 years 80%
6 years 100%.
39
Provided, however, that any amounts credited to the Employer
Contribution Account of any Participant which is attributable to his
employer contribution account transferred as a result of the merger of the
Henry House, Inc. Employees Savings Plan with this Plan shall become vested
and nonforfeitable based on his number of Years of Service (as defined
above) in the percentage indicated as follows:
Years of Service Percentage Vested
Less than 1 year 0%
1 year 20%
2 years 40%
3 years 60%
4 years 80%
5 years 100%.
If any Participant previously shall have made a withdrawal from his
Employer Contribution Account in accordance with Section 8.9, his current
vested interest in his Employer Contribution Account shall be equal to:
(a) The current value of his Employer Contribution Account,
plus
(b) The sum of any amounts previously withdrawn by or
distributed to the Participant from his Employer Contribution Account,
multiplied by
(c) The percentage then applicable to the Participant in
accordance with the schedule of percentages stated in this Section 4.2
minus
(d) The sum of all amounts previously withdrawn by or
distributed to the Participant from his Employer Contribution Account.
4.4 VESTING ON DEATH, DISABILITY OR NORMAL RETIREMENT
Upon a Participant's death, severance of employment due to Total and
Permanent Disability (defined above), or attainment of his Normal
Retirement Date (as defined in Section 8.3 below), the full amount of his
Employer Contribution Account shall become vested and nonforfeitable.
4.5 VESTING IF PLAN TERMINATED OR EMPLOYER CONTRIBUTIONS DISCONTINUED
Notwithstanding any other provisions of this Section 4, if the Plan
is terminated or Employer contributions to the Trust Fund are permanently
discontinued, the full amount of each Participant's Employer Contribution
Account shall become fully vested and nonforfeitable. If the Plan is
partially terminated, then the accounts of those Participants as to whom
partial termination occurred shall be fully vested and nonforfeitable.
4.6 EFFECT OF BREAK IN SERVICE ON VESTING
A former Participant who had a nonforfeitable right to all or a
portion of his Employer Contribution Account at the time of a Break in
Service shall receive credit for all Years of Service prior to his Break in
Service upon completing a Year of Service after such break. A former
Participant who did not have a nonforfeitable right to any portion of his
Employer Contribution Account at the time of a Break in Service shall
receive credit for all Years of Service before such break if (i) he
completes a Year of Service after such break, and (ii) the number of
consecutive one-year Breaks in Service is less than the greater of five (5)
years or the aggregate number of the Participant's Years of Service before
such break. All Years of Service occurring after five (5) consecutive one-
year Breaks in Service shall be disregarded for purposes of determining the
Participant's vested percentage in contributions that occurred before such
five-year break. Separate accounts shall be maintained for the pre-break
and post-break contributions.
40
4.7 DISPOSITION OF FORFEITED AMOUNTS
If a Participant incurs five consecutive one-year Breaks in Service
or if a Participant receives a Cash-Out Distribution pursuant to Section
8.6, then, in either event that part, if any, of his Employer Contribution
Account which is not vested in accordance with the foregoing provisions of
Section 4.3 shall be forfeited and shall be used to offset future Employer
Contributions under the Plan. Any former Participant receiving a Cash-Out
Distribution as defined in Section 8.6 who returns to the employ of the
Employer prior to incurring five consecutive one-year Breaks in Service and
repays the amount of his previous distribution pursuant to Section 8.6
shall have restored to his Employer Contribution Account any amount
previously forfeited. Such forfeiture shall be restored first from any
forfeitures during the Plan Year of his return to employment and next from
the Employer Contribution next occurring after his return. Disposition of
forfeitures pursuant to this Section 4.7 shall occur only after application
of the forfeiture provisions of Section 4.1(D)(2) above (regarding
forfeitures of Excess Contributions as defined therein).
4.8 CHANGE IN VESTING SCHEDULE
As to each Employee who had no less than 3 Years of Service on the
date any Plan amendment which directly or indirectly changes the vesting
schedule becomes effective, such Employee may elect to have his vesting
percentage computed without regard to such amendment. Such election will
be irrevocable and must be made in writing to Employer not later than the
latest of the following dates:
(1) 60 days after the amendment is adopted;
(2) 60 days after the effective date of the amendment;
(3) 60 days after the date the Employee is given written
notice of the amendment by the Employer.
SECTION 5
INVESTMENT OF CONTRIBUTIONS
5.1 INVESTMENT FUNDS
Initially the Trust Fund will consist of only one "Investment Fund"
which shall be designated as the "fixed rate fund". The fixed rate fund
shall consist of assets that reasonably can be expected to have a fixed
rate of return or that have a guaranteed rate of return with a low risk of
loss of principal. At a future date to be determined by the Committee (the
"fund separation date"), the Trust Fund may be separated into as many as
four "Investment Funds" for the investment of the contributions made
hereunder. Such separate funds shall include the aforementioned fixed rate
fund and one or more of the following: (i) an equity fund, consisting of
investments primarily in common and preferred stocks and convertible
securities (excluding Employer securities), (ii) a balanced fund,
consisting of investments in bonds, stocks and money market instruments and
(iii) an Employer stock fund consisting entirely of Class A common stock of
Tyson Foods, Inc. The value of the assets held in the Trust Fund in each
of the Investment Funds as of each Valuation Date shall be determined on
the basis of the fair market value of the assets of such fund as of such
date as appraised by the Trustee. After the fund separation date, each of
the Investment Funds shall be segregated from and completely independent of
the other Investment Funds and the accounting procedures described in
Section 7.1 hereof shall apply separately with respect to each such fund.
41
5.2 DESIGNATION BY PARTICIPANT OF INVESTMENT FUNDS
(A) If applicable, each Participant in the Plan shall elect
(separately with respect to each applicable type of contribution) as of his
date of initial participation in the Plan or as of the fund separation
date, if later, to have his future Salary Deferral Contributions and the
Employer's Contributions, if any, which are allocated on his behalf to the
Plan invested among the Investment Funds in any multiples of 10% or such
other multiples as the Committee may establish and announce in writing to
the Participants. A Participant who makes a Rollover Contribution to the
Plan shall make a separate election with respect to the Investment Fund or
Funds for investment of his Rollover Contribution.
(B) In the event that a Participant fails to make an election under
(A) above with respect to one or more applicable type of contribution, he
shall be deemed to have elected 100% of the fixed rate fund Investment Fund
with respect to each such type of contribution for which no election was
made.
5.3 CHANGE OF INVESTMENT DESIGNATION
A Participant may change his designation of the manner of investment
with respect to future Salary Deferral Contributions and the Employer's
Contributions which are allocated on his behalf to any other manner
permitted under Section 5.2(A) above as of any Valuation Date by filing a
written application for the change (on a form provided by the Committee for
this purpose) at least 30 days prior to such date.
5.4 TRANSFERS AMONG INVESTMENT FUNDS
A Participant may direct funds credited to any of his Investment
Fund subaccounts in his Salary Deferral Contribution Account, Employer
Contribution Account and, if applicable, his Rollover Contribution Account,
which are held on his behalf in the applicable Investment Fund transferred,
in multiples of 10% or such other multiples as the Committee may establish
and announce in writing to the Participants, and credited to one of the
other Investment Fund subaccounts in such account as of the day following
any Valuation Date by filing a written application directing the transfer
(on a form provided by the Committee for this purpose) at least 30 days
prior to such date.
5.5 SPECIAL ONE TIME ELECTION
Notwithstanding anything stated to the contrary in this Section 5,
Participants in this Plan who previously were participants in the Victor F.
Weaver, Inc. Retirement/Savings Plan (the "Weaver Plan") and who had
elected to invest part or all of their accounts thereunder in the equity
fund and/or the balanced fund available under the Weaver Plan shall be
entitled to make a one time election to direct that such funds invested in
the Weaver equity fund and/or Weaver balanced fund be credited, in any
increments of 10%, to either the Tyson fixed rate fund, the Weaver equity
fund or the Weaver balanced fund. After September 1, 1991, to the extent
such funds are invested in the Weaver equity fund and/or the Weaver
balanced fund, such Participant shall not be entitled to direct any
transfers of amounts of such funds between such funds; provided, however,
that after September 1, 1991 such Participant nevertheless will be
entitled, pursuant to the provisions set forth in Section 5.4, to direct
that all of his funds invested in either the Weaver equity fund and/or the
Weaver balanced fund shall be transferred to the Tyson fixed rate fund.
Once funds from the Weaver equity fund and/or Weaver balanced fund are
transferred to the Tyson fixed rate fund, those funds may not again be
transferred back to either of the Weaver funds. Similarly, Participants
42
who previously were participants in the Henry House, Inc. Employees Savings
Plan (the "Henry House Plan") and who had elected to invest part or all of
their accounts thereunder in the variable account available under the Henry
House plan shall be entitled to make a one time election to direct that
such funds invested in the Henry House variable account be credited, in any
increments of 10%, to either the Henry House variable account or the Tyson
fixed rate fund. Provided, however, that after February 1, 1992 such
Participant shall be entitled, pursuant to the provisions set forth above
in Section 5.4, to direct that all of his funds invested in the Henry House
variable account shall be transferred to the Tyson fixed rate fund. Once
funds from the Henry House variable account are transferred to the Tyson
fixed rate fund, those funds may not again be transferred back to the Henry
House variable account.
SECTION 6
INDIVIDUAL ACCOUNTS
6.1 ESTABLISHING AND MAINTAINING PARTICIPANT'S ACCOUNTS
(A) The Committee shall cause to be established and maintained for
each Participant until his Initial Distribution Date, or until such later
date as of which distribution of the value in such accounts is made, with
respect to each Employer (or group of Employers with respect to which the
Plan represents a single plan) by which the Participant is or has been
employed, two separate accounts, called the "Salary Deferral Contribution
Account," and the "Employer Contribution Account," respectively. The
Participant's Salary Deferral Contribution Account will reflect his
interest in the funds credited on his behalf under the Plan as a result of
the Salary Deferral Contributions made on his behalf under this Plan or any
of the Merged Plans plus, if applicable, any Employer contributions which
the Employer may have elected to treat as Salary Deferral Contributions.
The Participant's Employer Contribution Account will reflect his interest
in the funds, if any, credited on his behalf under the Plan as a result of
the Employer's Contributions on his behalf under this Plan or any of the
Merged Plans. In addition, the Participant's Salary Deferral Contribution
Account and Employer Contribution Account shall consist of such subaccounts
as are required to reflect his interest in the various Investment Funds in
accordance with his directions as specified in Section 5 hereof or to
reflect faster vesting requirements attributable to any employer
contribution accounts from any of the Merged Plans or any other variances
in the source or treatment of accounts from any of the Merged Plans.
(B) In addition to the separate accounts described in Section
6.1(A) above, the Committee shall cause to be established and maintained
for each applicable Participant until his Initial Distribution date or
until such later date as of which distribution of the value in such
account is made: (1) the Rollover Contribution Account described in
Section 3.2 hereof which may include rollover accounts from any of the
Merged Plans and (2) separate After-Tax Contribution Accounts for any
after-tax contribution accounts from any of the Merged Plans. The
additional Accounts created pursuant to this Section 6.1(B) at all times
shall be 100% vested and shall consist of such subaccounts as are required
to reflect his interest in the various Investment Funds in accordance with
his directions as specified in Section 5 hereof.
(C) Each such account and subaccount maintained on behalf of each
Participant shall be credited or debited to the extent required by the
provisions of the Plan. All entries on such individual accounts shall be
conclusive and binding upon all parties unless patently erroneous. Monies
43
derived from these accounts shall be held, administered, invested and
disbursed in accordance with the Plan and Trust Agreement.
SECTION 7
ACCOUNTING
7.1 VALUATION OF ACCOUNTS
(A) As of each Valuation Date and as of such other interim date or
dates as may be established by the Committee, in its sole discretion, for
making the adjustments to the accounts, the sum of the balances credited to
each of the Investments Fund subaccounts in the accounts of all
Participants, [that is, the sum of such subaccounts in (1) the Salary
Deferral Contribution Accounts, (2) the Employer Contribution Accounts, (3)
the After-Tax Contribution Accounts, after debiting such subaccounts with
the amounts of any distributions or withdrawals with regard to such
subaccounts since the last preceding Valuation Date and after crediting the
amounts of the Participants' Salary Deferral Contributions and Regular
Matching Contributions since the preceding Valuation Date but prior to
crediting the Employer's Additional Matching Contributions, if any, under
Section 7.4 hereof on such Valuation Date and (4) the Rollover Contribution
Accounts, after debiting such subaccounts in the Rollover Contribution
Accounts with the amounts of any distributions or withdrawals with regard
to such subaccounts since the last preceding Valuation Date, but excluding
any Rollover Contribution Accounts that were established after the last
preceding Valuation Date] shall be compared with the then value of the
applicable Investment Fund as reported by the Trustee to the Committee,
after debiting all distributions and withdrawals paid out of such
Investment Fund since the last preceding Valuation Date, excluding from
such value any amount which represents the Employer's Additional Matching
Contributions since the last preceding Plan Year. On the basis of such
comparison, the sum of the balances credited to such of the Participants'
Investment Fund subaccounts will be adjusted to equal the value of the
applicable Investment Funds in the manner described in Section 7.1(B)
below.
(B) The difference between (1) the value of the applicable
Investment Fund [after adjustment of the Investment Fund as described in
Section 7.1(A)] and (2) the sum of the balances credited to such of the
Participants' Investment Fund subaccounts [after adjustments have been made
to such subaccounts pursuant to Section 7.1(A)], will be apportioned to the
Participants' Investment Fund subaccounts in proportion to the balances
credited to the respective Investment Fund subaccounts (as modified below)
before such apportionment. On the basis of the comparison described in
Section 7.1(A) above, the sum of such balances credited to the subaccounts
will be further adjusted to equal the value of the applicable Investment
Fund by apportioning to such of the Participants' subaccounts the
difference between the sum of such balances credited to the subaccounts and
such value of the applicable Investment Fund, in proportion to the balances
credited to the respective subaccounts before such apportionment; provided,
however, that for purposes of such apportionment, Participants' subaccounts
shall be determined as set forth in Section 7.1(A) above, except for the
following modifications:
(i) only one-half of a Participant's Salary Deferral
Contributions and corresponding Regular Matching Contributions shall be
included; and
(ii) if the Trustee has elected to commingle a Participant's
Rollover Contribution with the assets of the Trust Fund pursuant to Section
44
3.2(c) since the preceding Valuation Date, then the Participant's Rollover
Contribution Account only shall be credited with that fraction of the
Rollover Contribution equal to the number of complete months from the date
the Trust received such Rollover Contribution to the current Valuation Date
over the number of complete months since the preceding Valuation Date.
The amounts of such differences which are so apportioned to each
Participant shall be credited or debited, as the case may be, to the
subaccounts of such Participants before such apportionment to determine the
adjustment to the individual subaccounts of each Participant and the
subaccounts so adjusted, increased by the additional amount, if any,
credited in accordance with the provisions of Section 7.4 hereof, shall be
the balances credited to such subaccounts of the Participants until the
next following Valuation Date or until being adjusted for any debits or
credits pursuant to Sections 7 and 8 hereof.
(C) Notwithstanding the language of Section 7.1(A), the value of a
Participant's fixed rate fund subaccounts which are invested in a group
annuity fund shall be determined in accordance with the group annuity
contract or contracts on each Valuation Date.
(D) The value of each Investment Fund as of each Valuation Date
will be determined on the basis of the fair market value of the assets of
such Investment Fund as appraised by the Trustee.
(E) For purposes of this Section 7.1, the term "Investment Fund"
shall include, where applicable, the Weaver Plan equity and balanced funds
and the Henry House variable account referred to in Section 5.5 above.
7.2 MAXIMUM ANNUAL ADDITION ON BEHALF OF ANY PARTICIPANT DURING
ANY LIMITATION YEAR
(A) The term "annual addition" as used herein means the sum for any
Limitation Year of:
(1) The amount of the Participant's Salary Deferral
Contributions for the Limitation Year and the Employer's contributions, if
any, allocated on his behalf for the Limitation Year under Section 7.4
below;
(2) Any salary deferral contributions, employer contributions
and forfeitures allocated on his behalf under all other Defined
Contribution Plans of the Controlled Group Members; and
(3) Any "after-tax" participant contributions by the
Participant for such Limitation Year under the Plan and all other Defined
Contributions Plans of the Controlled Group Members.
(B) Any provisions herein to the contrary notwithstanding, in no
event shall the annual addition of a Participant during any Limitation Year
exceed the maximum limitation for Defined Contribution Plans as specified
in 415(c) of the Code. In determining the maximum annual addition that may
be allocated on behalf of any Participant during any Limitation Year, all
Defined Contribution Plans, whether or not terminated, of all Controlled
Members are to be treated as one Defined Contribution Plan. The proportion
of the maximum annual addition applicable to all such Defined Contribution
Plans of such Controlled Group Members during any Limitation Year shall be
determined on a pro rata basis depending upon the amount of the annual
addition that would have otherwise been allocated on his behalf under each
such Defined Contribution Plan during such Limitation Year if the
restriction of this Section 7.2 did not apply. The term "IRC 415
Compensation" shall have the meaning assigned in 415 of the Code and
regulations issued with respect thereto. Such compensation shall include
(i) earned income (including earned income from sources outside the United
States, as defined in 911(b) of said Code, whether or not excludable from
45
gross income under 911 or deductible under 913 of said Code), wages,
salaries, fees for professional services, and other amounts received for
personal services actually rendered in the course of employment with the
employer (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses), (ii) amounts
described in 104(a)(3), 105(a) and 105(h) of the Code, but only to the
extent that these amounts are includable in the gross income of the
Participant, (iii) amounts described in 105(d) of the Code, whether or not
these amounts are excludable from the gross income of the Participant under
that section of said Code, (iv) amounts paid or reimbursed by the employer
for moving expenses incurred by the Participant, but only to the extent
that these amounts are not deductible by the Participant under 217 of the
Code, (v) the value of a nonqualified stock option granted to the
Participant by the employer, but only to the extent that the value of the
stock option is includable in the gross income of the Participant for the
taxable year in which granted, (vi) the amount includable in the gross
income of the Participant upon making the election described in 83(b) of
the Code and (vii) any amounts received by the Participant pursuant to an
unfunded non-qualified plan in the year such amounts are includable in the
gross income of the Participant. Such compensation shall exclude (i)
contributions by the employer to a plan of deferred compensation which are
not included in the Participant's gross income for the taxable year in
which contributed, (ii) contributions by the employer under a simplified
employee pension plan to the extent such contributions are deductible by
the Participant, (iii) any distribution from a plan of deferred
compensation that is qualified pursuant to 401(a) of the Code, (iv) amounts
realized from the exercise of a nonqualified stock option, (v) amounts
realized when restricted stock (or property) held by the employee either
becomes freely transferable or is no longer subject to a substantial risk
of forfeiture, (vi) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option, (vii) other
amounts which received special tax benefits and (viii) contributions made
by the employer (whether or not under a salary reduction agreement) towards
the purchase of an annuity described in 403(b) of the Code (whether or not
the amounts are actually excludable from the gross income of the
Participant). Notwithstanding the foregoing, the annual Compensation of
each Participant under this Section 7.2 shall not exceed $200,000 or such
other amount as may be specified by the Secretary of the Treasury pursuant
to his duties under 401(a)(17) of the Code.
(1) Maximum Annual Addition Due to Restrictions of 415(c) of the
Code: The total annual addition (the total applicable to all such Defined
Contribution Plans of the Controlled Group Members) which may be allocated
on behalf of a Participant during any Limitation Year shall not exceed an
amount equal to the lesser of:
(a) $30,000 or, if greater, one-fourth (1/4) of the defined
benefit dollar limitation set forth in 415(b)(1)(A) of the Code as in
effect as of the last day of such Limitation Year; or
(b) An amount equal to 25% of the IRC 415 Compensation which
the Participant received from the Controlled Group Members during such
Limitation Year.
(C) The above limitations are intended to comply with the
provisions of 415 of the Code so that the maximum benefits provided by
plans of the Controlled Group Members shall be exactly equal to the maximum
amounts allowed under 415 of the Code and the regulations issued thereunder
which are hereby incorporated by reference. If there is any discrepancy
between the provisions of this Section 7.2 and the provisions of 415 of the
46
Code and the regulations issued thereunder, such discrepancy shall be
resolved so as to give full effect to the provisions of 415 of said Code.
(D) Defined Benefit and Defined Contribution Plans. Where the
Participant is or was also a Participant in one or more defined benefit
plans of the Employer, the sum of such Participant's defined benefit plan
fraction and defined contribution plan fraction, as determined pursuant to
Code 415(e) (as modified by 416(h) of the Code to the extent applicable),
for any Plan Year may not exceed one (1). The Employer may, in calculating
the defined contribution plan fraction, elect to apply the transitional
rule provided in 415(e)(6) of the Code. In the event that the sum of
Participant's defined contribution plan and defined benefit plan fractions
would otherwise exceed one (1) for any Plan Year, then the Annual Addition
which would otherwise be made under all applicable defined contribution
plans for such Participant shall be adjusted pursuant to Section 7.2(E) to
the extent necessary, so that the sum of such fraction does not exceed one
(1). If, after all such adjustments, the sum of the fractions would still
exceed one (1), then the benefit which would otherwise be accrued with
respect to such Participant under any applicable defined benefit plan shall
be considered not to have been accrued and will be limited to the extent
necessary so that the sum does not exceed one (1).
(E) In the event that the Participant's annual addition under the
Defined Contribution Plans for any Limitation Year is restricted as a
result of the above provisions of this section, that portion or all of the
annual addition allocable to the Participant under the Plan for such
Limitation Year which is required to reduce the amount of the annual
addition to the amount permitted under Section 7.2(B) above shall be
eliminated by holding unallocated in a special account, called the
"Unallocated Limitation Account" to the extent necessary, that portion or
all of the Participant's allocable share of the Employer's Contributions
for the Plan Year, for subsequent allocation with the Employer's
Contributions for the next succeeding Plan year (or, if necessary, Plan
Years). The Unallocated Limitation Account shall not be adjusted for gains
or losses as of any Accounting Date. Provided, however, that the
provisions of this subparagraph (E) shall apply only to the extent such
annual addition has not been reduced to the amount permitted under Section
7.2(B) above by first applying any similar provisions for reducing such
excess annual additions under any other Defined Contribution Plans of the
Controlled Group Members in which the Participant also is an active
participant.
7.3 CREDITING OF SALARY DEFERRAL CONTRIBUTIONS
The Salary Deferral Contributions made on behalf of each Participant
shall be credited to his applicable Investment Fund subaccounts in his
Salary Deferral Contribution Account as soon as practicable after they are
deducted from his Compensation and turned over to the Trustee, but in no
event later than the next following Accounting Date.
7.4 ALLOCATION AND CREDITING OF EMPLOYER'S CONTRIBUTIONS
(A) The Regular Matching Contributions made on behalf of each
Participant shall be credited to his applicable Investment Fund sub-
accounts in his Employer Contribution Account as soon as practicable after
his corresponding Matched Salary Deferral Contributions are paid to the
Trustee pursuant to Section 7.3 above, but in no event later than the next
following Accounting Date. As of the last Accounting Date of each Plan
Year, after making the debits or credits to the Participants' accounts
required by Section 7.1 above, the sum of the Employer's Additional
Matching Contribution," if any, (as defined in Section 4.1(B) hereof) for
47
the current Plan Year shall, subject to the maximum limitations on
contributions described in Section 7.2 and the limitations of Section
4.1(D) above, be allocated and credited to the Employer Contribution
Accounts of those Active Participants in the Plan at any time during the
current Plan Year who are entitled to share in the allocation in accordance
with Section 7.4(B) below, in the proportion which the Matched Salary
Deferral Contributions made on behalf of such Participant during the
current Plan Year bears to the aggregate of such Matched Salary Deferral
Contributions made during the current Plan Year on behalf of all such
Participants who are sharing in the allocation of the Employer's
Contributions for such Plan Year.
(B) Those Active Participants in the Plan at any time during the
current Plan Year who either (1) are in the active service of the Employer
on the last Accounting Date of the Plan Year (i.e., whose service has not
terminated prior to the last business day of the Plan Year just ended) or
(2) are not in active service because of termination of service during the
current Plan Year due to death or Total and Permanent Disability, shall be
entitled to share in the Employer's Additional Matching Contributions, if
any, for such Plan Year.
7.5 EFFECTIVE DATE OF ENTRIES
Each adjustment provided for by Sections 7.1 to 7.4, inclusive,
shall be considered as having been made on the dates specified in such
sections, regardless of the dates of actual entries or receipt by the
Trustee of contributions for such year.
SECTION 8
DISTRIBUTIONS
8.1 INITIAL DISTRIBUTION DATE
The Initial Distribution Date of a Participant shall be the earlier
of:
(a) The date of termination of his employment; or
(b) The end of his Plan Year in which he attains age 70 1/2.
8.2 ESTABLISHMENT OF DISTRIBUTION ACCOUNT
On a Participant's Initial Distribution Date, the Trustee shall
determine the amount of each separate account of the Participant to which
such Participant may be entitled on such date in accordance with the
vesting provisions of Section 4, and shall credit such amount or amounts to
a new account for the former Participant to be called the "Distribution
Account." The balance of the Participant's Employer Contribution Account
(representing his forfeitable amount) shall continue to be held therein,
until forfeited in accordance with Section 4.7. The net credit balance in
each Distribution Account shall be subject on each Accounting Date to the
adjustments specified in Section 7.1.
8.3 DATE OF DISTRIBUTION.
(A) Less than $3,500. Disbursement of a Participant's Distribution
Account shall be made in one cash lump sum without his consent within sixty
(60) days of the Valuation Date coincident with or immediately following
his termination of employment if the vested amount of such account does not
exceed $3,500.
(B) Greater than $3,500. If the vested amount of a Participant's
Distribution Account exceeds $3,500 upon termination of employment,
disbursement of the Distribution 2Account shall be made, or begun if in
48
periodic payments, subject to the provisions of Section 8.11 below, if
applicable, as follows:
(1) With the written consent of the Participant, within sixty
(60) days of the Valuation Date coincident with or immediately following
the date such consent is received by Employer; or
(2) If the Participant does not consent to a distribution
under (1) above, within sixty (60) days of the Valuation Date coincident
with or immediately following the date:
(a) the Participant dies;
(b) the Participant incurs a Total and Permanent
Disability (as defined in Section 1.1(A)(31));
(c) the Participant reaches age 55, has at least ten (10)
Years of Service with Employer and elects to begin receiving distributions
on or after such date; or
(d) the Participant reaches his Normal Retirement
Date or Age (as defined below).
Provided, however, that such Participant thereafter may elect to
withdraw as of any Accounting Date, all of his Salary Deferral Contribution
Account by filing a written application with the Committee at least 30 days
prior to the date the withdrawal is to be made.
For purposes of the Plan, "Normal Retirement Date" or "Normal
Retirement Age" shall mean a Participant's 65th birthday. Notwithstanding
the foregoing, the disbursement of the Distribution Account shall in any
event be made or begun by April 1 of the calendar year following the
calendar year in which the Participant attains age 70-1/2.
8.4 METHODS OF DISTRIBUTION
(A) Except as may be required under Section 8.4(B) and under
Sections 8.3(A), 8.10 and 8.11, all distributions made to a Participant or
his beneficiaries shall be made by the Trustee in one of the three
following methods:
(1) Lump Sum. By payment in a lump sum.
(2) Installments. By payment in equal installments over a
period certain which does not extend beyond the lesser of twenty (20) years
or the life expectancy of the Participant or the joint life expectancies of
such Participant and the Participant's beneficiary determined as of the
date that payment of benefits commences, subject to the following
requirements:
(a) Fifty Percent (50%) Present Value Test. The
present value of payments to be made to the Participant must be more than
fifty percent (50%) of the present value of the total payments to be made
to the Participant and the Participant's beneficiaries, all as determined
as of the later of such Participant's normal retirement date or the
Participant's termination of employment; and
(b) Equal Installments. Payments must be in the
form of annual or more frequent installments provided the present value of
all such periodic payments payable to the Participant or his or her
beneficiary must be equal to the immediate lump sum otherwise distributable
to the Participant had a lump sum settlement been made.
(3) Combination. By a combination of (1) and (2). The method
of distribution to the Participant or his beneficiaries shall be
implemented by the Committee, in accordance with the directions of the
Participant in effect at the time the Participant's employment is
terminated.
49
(B) Notwithstanding subsection (A) above, all distributions of any
amounts from a Participant's After-Tax Contribution Account and Employer
Contribution Account attributable to such accounts transferred from the
merged Tyson Thrift Plan shall be subject to the following additional
provisions:
(1) Annuity Option. Such Participant who retires and begins to
receive payments under the Plan shall have, in addition to the distribution
options available under Section 8.4(A) above, the right to elect to receive
payment from such account in the form of a life annuity (or, if married, in
the form of a Qualified Joint and Survivor Annuity). The Participant (and,
if married, with the consent of his spouse) also may elect during the
election period (which shall be the 90-day period ending on the Annuity
Starting Date) to receive payments from such account in the form of a
straight life annuity or a straight life annuity with a ten-year guarantee.
Any election shall be in writing and may be changed at any time.
(2) Preretirement Survivor Annuity. If a Participant who is
married dies before the date upon which his retirement benefits were to
commence, such Participant's surviving spouse shall have, in addition to
the distribution options available under Section 8.4(A) above, the right to
elect to receive payment from such account in the form of a Preretirement
Survivor Annuity. The spouse also may elect during the election period,
which shall begin on the first day of the Plan Year in which the
Participant attains age 35 (or for a Participant who is separated from
service the date of such separation with respect to benefits accrued before
separation) and end, on the date benefits commence, to receive payments
from such account in the form of a straight life annuity or a straight life
annuity with a ten-year guarantee. Any election shall be in writing and
may be changed at any time. The surviving spouse may elect to have such
annuity distributed immediately or at a later date not later than the date
the Participant would have attained the Normal Retirement Date.
For purposes of this Section 8.4(B) and elsewhere in this Plan, the
following terms shall have the following meanings:
(1) "Annuity Starting Date" means the first day of the month
following the date the Insurer receives from the Plan Administrator such
written notice of a distribution as shall be required by the Insurer, or,
if later, the first day of the month specified by Participant or
Beneficiary for the commencement of benefit payment(s) in accordance with
Section 8 hereof.
(2) "Qualified Joint and Survivor Annuity" means an annuity
for the life of the Participant with a Survivor Annuity for the life of
his/her spouse which is one-half of the amount of the annuity payable
during the joint lives of the Participant and his/her spouse and which is
the actuarial equivalent of a single life annuity for the life of the
Participant.
(3) "Preretirement Survivor Annuity" means an annuity for the
life of the surviving spouse of a deceased Participant that has an
actuarial present value that is equal to 100% of the balance in the
Participant's account as of the date of the Participant's death.
(C) Notwithstanding any other Plan provision to the contrary, all
Plan distributions shall comply with the requirements of 401(a)(9) of the
Code and the regulations thereunder, including 1.401(a)(9)-2.
8.5 DEFERRED RETIREMENT
If such Participant elects to continue in the employment of the
Employer beyond his Normal Retirement Date, he shall continue to be treated
in all respects as a Participant under the Plan until his actual
retirement.
50
8.6 CASH-OUT DISTRIBUTIONS
If a Participant terminates service with the Employer and receives
an immediate distribution of the vested portion of his accounts under the
Plan pursuant to Section 8.3 (a "Cash-Out Distribution"), the nonvested
portion of the Participant's accounts under the Plan immediately will be
forfeited and applied in accordance with Section 4.7. If a Participant
separates from service and does not have a vested benefit, the Participant
shall be treated for purposes of this Plan as receiving a cashout of such
zero vested benefit immediately and his accounts under the Plan immediately
will be forfeited and applied in accordance with Section 4.7. If the
Participant resumes or continues employment covered under the Plan and
repays during the employment with the Employer the amount distributed
pursuant to this Section within the time limit stated below, then the
Trustee shall credit to his accounts under the Plan the amount standing to
his credit in each account immediately prior to the distribution,
unadjusted by any subsequent gains or losses of the Trust Fund. Such
repayment must occur before the Participant incurs five (5) consecutive
one-year Breaks in Service.
8.7 PAYMENT OF BENEFITS UPON DEATH OF PARTICIPANT
Upon the death of a Participant the portion of the Participant's
account balance, if any, not yet paid to the Participant shall be paid to
the Participant's surviving spouse; provided, however, that if the
Participant is not survived by a spouse or if such spouse consents to an
election out of such payment as set forth in paragraph 8.8, such benefits
shall be paid to the Participant's designated beneficiary.
8.8 SPOUSAL CONSENT
Any election by a Participant to pay benefits upon the Participant's
Death to a beneficiary other than the Participant's spouse under paragraph
8.7 above shall not be effective unless (i) the spouse of the Participant
consents in writing to such election and the spouse's consent acknowledges
the effect of such election and is witnessed by the Employer or a notary
public, or (ii) it is established to the satisfaction of the Employer that
the consent required from the spouse may not be obtained because there is
no spouse, because a spouse cannot be located or because of such other
circumstances as may be established by the Secretary of Treasury under
prescribed regulations.
8.9 DEATH BEFORE COMMENCEMENT OF BENEFITS
If a Participant dies before the distribution of his interest has
commenced, the Participant's entire interest shall be distributed within
five (5) years after his death to his designated beneficiary; provided,
however, that such benefits may be paid to the designated beneficiary over
the life of the beneficiary or over a period not exceeding the life
expectancy of the beneficiary if such benefits commence within one year of
the Participant's death. If distributions have commenced prior to the
Participant's death, the remaining portion of the Participant's account
shall be distributed to such Participant's beneficiary at least as rapidly
as under the method of distribution being used at the time of the
Participant's death. Notwithstanding the foregoing, if the Participant's
designated beneficiary is his or her spouse, such payments need not begin
earlier than the date on which the Participant would have attained age 70
1/2 years. If the spouse dies before distribution to such spouse begins,
this section shall be applied as if the surviving spouse was the
Participant.
51
8.10 WITHDRAWALS WHILE STILL EMPLOYED
A Participant may, while still employed by the Employer, make a
withdrawal of all or any part of those accounts described below, subject to
the following restrictions:
(1) Withdrawals may be made only as of an Accounting Date
after all adjustments have been made to the accounts as described in
Section 7.1 hereof.
(2) All withdrawals are subject to the Participant having
filed a written application with the Committee at least 30 days prior to
the date on which the withdrawal is to be made.
(3) All withdrawals shall be in the form of a lump-sum cash
payment and the amounts withdrawn shall be debited from the Participant's
accounts as of the date the payment is made.
(4) Except as provided below, a Participant may withdraw all
or any portion of (i) his Salary Deferral Contribution Account, (ii) the
vested portion of that part, if any, of his Employer Contribution Account
from the Company's former Thrift Plan and (iii) that part of his Rollover
Account from the Company's former Thrift Plan, only in the event that he
furnishes satisfactory evidence to the Committee that the withdrawal is on
account of "hardship". For this purpose, a distribution shall be on
account of hardship only if it both (i) is made on account of an immediate
and heavy financial need of the Participant and (ii) is necessary to
satisfy such financial need. For the determination of hardship, the
Committee shall adhere to the following rules:
(a) A distribution will be deemed to be made on
account of an immediate and heavy financial need of the Participant if the
distribution is on account of:
(i) Medical expenses described in
213(d) of the Code incurred by the Participant, the Participant's spouse or
any dependents of the Participant (as defined in 152 of the Code) or
necessary for such persons to obtain medical care described in 213(d) of
the Code;
(ii) Purchase (excluding mortgage
payments) of a principal residence for the Participant;
(iii) Payment of tuition and
related educational fees for the next 12 months of post-secondary education
for the Participant, his or her spouse, children or dependents; or
(iv) The need to prevent the eviction
of the Participant from his principal residence or foreclosure on the
mortgage of the Participant's principal residence.
(b) A distribution will be deemed to be necessary to
satisfy an immediate and heavy financial need of a Participant if all of
the following requirements are satisfied:
(i) The distribution is not in excess
of the amount of the immediate and heavy financial need of the Participant
which may include any amounts necessary to pay any federal, state, or local
income taxes or penalties reasonably anticipated to result from the
distribution;
(ii) The Participant has obtained all
distributions, other than hardship distributions, and all non-taxable loans
currently available under all plans maintained by the Employer;
(iii) The Participant's Salary
Deferral Contributions under Section 3.1 of the Plan shall be suspended for
twelve (12) months after the Participant's receipt of the hardship
distribution; and
(iv) The Participant's maximum annual
deferral determined under 402(g) of the Code and Section 3.1(A) of the Plan
52
for the Participant's calendar year immediately following the taxable year
of the hardship distribution shall be reduced by the amount of such
Participant's Salary Deferral Contributions for the taxable
year of the hardship distribution.
Provided, however, that the provisions of (b)(ii) - (iv) shall not
apply if the Participant's withdrawal under this Section 8.10(4) does not
include any portion of his Salary Deferral Contribution Account.
Notwithstanding the above language of this paragraph (4) of this Section
8.10, the following additional rules shall apply regarding the ability to
make hardship withdrawals from a Participant's Salary Deferral Contribution
Account:
(a) income allocable to a Participant's Salary Deferral
Contribution Account but credited after December 31, 1988 may not be
withdrawn;
(b) a Participant may not withdraw any non-elective Employer
contributions which were credited to a Participant's Salary Deferral
Contribution Account after December 31, 1988 because they were treated as
Salary Deferral Contributions for purposes of Section 3.1(E) of the Plan; and
(c) effective April 1, 1993, no income, regardless of when
allocated, may be withdrawn from a Participant's Salary Deferral
Contribution Account.
(5) At such time as a Participant attains the age of 59 1/2 years,
the Participant may direct the Trustee to distribute up to the entire
amount of his Salary Deferral Contribution Account as of any Accounting
Date. Such distributions must equal at least $500 each and are limited to
two (2) distributions per Plan Year. In the event a Participant elects to
take such a distribution, he shall continue to be eligible to participate
in the Plan on the same basis as any other Participant.
(6) A Participant may elect to withdraw, as of any Accounting Date,
part or all of his After-Tax Contribution Account.
(7) Notwithstanding Sections 8.1, 8.2 and 8.3 above, if a
Participant elects under Section 8.5 to defer retirement beyond his Normal
Retirement Date, the Participant may direct the Trustee to begin
distributions of part or all of any of his accounts under the Plan in any
manner provided in Section 8.4 of the Plan following his Normal Retirement
Date.
(8) The amount that a Participant may withdraw from his Employer
Contribution Account under either paragraph (4) or (7) of this Section 8.10
shall not exceed the excess of (a) the net credit balance in such account
as of the effective date of the withdrawal over (b) the Employer's
Contributions allocated on behalf of the Participant as of the last
Accounting Date of each of the preceding two Plan Years.
(9) The Committee shall establish such rules and give such
directions to the Trustee as shall be appropriate to effectuate the
withdrawal in accordance with the terms hereof.
8.11 ELIGIBLE ROLLOVER DISTRIBUTIONS
This section applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this section, a distributee
may elect, at the time and in the manner prescribed by the plan
administrator, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the distributee
in a direct rollover.
(a) Eligible Rollover Distribution. An eligible rollover
distribution is any distribution of all or any portion of the balance to
53
the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under 401(a)(9) of
the Code; and the portion of any distribution that is not includable in
gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) Eligible Retirement Plan. An eligible retirement plan is
an individual retirement account described in 408(a) of the Code, an
individual retirement annuity described in 408(b) of the Code, an annuity
plan described in 403(a) of the Code, or a qualified trust described in
401(a) of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(c) Distributee. A distributee includes an employee or former
employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse or former spouse who
is the alternate payee under a qualified domestic relations order, as
defined in 414(p) of the Code, are distributees with regard to the interest
of the spouse or former spouse.
(d) Direct Rollover. A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the distributee.
SECTION 9
SPECIAL PROVISIONS APPLICABLE IF PLAN IS TOP-HEAVY
9.1 APPLICABILITY OF TOP-HEAVY PLAN PROVISIONS
The provisions of this Section 9 shall apply if the Plan becomes a
"top-heavy plan" within the meaning of 416(g) of the Code with respect to
any Plan Year that ends after the Effective Date of the Plan.
9.2 DETERMINATION OF PLAN YEARS IN WHICH PLAN IS TOP-HEAVY
(A) The Plan shall be "top-heavy" with respect to an applicable
Plan Year if:
(1) either (a) any Participant, former Participant or
Beneficiary is a "Key Employee" (as defined in Section 9.2(B) herein), or
(b) the Plan enables any other plan which is included in the Aggregation
Group (as defined below) and which has a Participant who is a Key Employee,
to meet the requirements of 401(a)(4) or 410 of said Code; and
(2) the ratio (determined in accordance with 416 of said Code)
as of the last day of the preceding Plan Year or, in the case of the first
Plan Year, the last day of such first Plan Year (such day, whether
applicable to the first Plan Year or to subsequent Plan Years, is
hereinafter referred to in this Section 9 as the "Determination Date") of:
(a) the aggregate of the individual accounts of all
Key Employees under all Defined Contribution Plans included in such
Aggregation Group; to
(b) a similar sum determined for all Participants,
former Participants and Beneficiaries - excluding any Participants and
former Participants (or their Beneficiaries) who have not at any time
during the five-year period ending on the Determination Date performed
54
services for any employer maintaining a plan included in the Aggregation
Group, under all Defined Contribution Plans included in such Aggregation
Group; is greater than 60%.
(B) For the purposes of this Section 9, the following terms shall
have the following meanings:
(1) "Aggregation Group". Aggregation Group means:
(a) "Required Aggregation":
(i) each plan of the Employer in which a
Key Employee is a participant (in the Plan Year containing the
Determination Date or any of the four preceding Plan Years), and
(ii) each other plan of the Employer which
enables any plan described in subclause (i) to meet the requirements of
401(a)(4) or 410 of the Code; or
(b) "Permissive Aggregation": any other plan not
required to be aggregated may be included by the Employer if such group
would continue to meet the requirements of 401(a)(4) and 410 with such plan
being taken into account.
(c) In determining the Aggregation Group, plans
terminated within the five-year period ending on the Determination Date
also shall be taken into consideration.
(2) "Key Employee" means an Employee, former Employee or the
beneficiary of either who, at any time during the Plan Year or any of the
four preceding Plan Years, is:
(a) an officer of the Employer having an annual
compensation greater than 50% of the amount in effect under 415(b)(1)(A)
for any Plan Year;
(b) one of the 10 Employees having annual
compensation from the Employer of more than the limitation in effect under
415(c)(1)(A) of the Code and owning (or considered as owning within the
meaning of 318) the largest interests in the Employer;
(c) a 5-percent owner of the Employer;
(d) a 1-percent owner of the Employer having an
annual compensation from the Employer of more than $150,000. For purposes
of clause (a), no more than 50 Employees (or, if lesser, the greater of 3
or 10 percent of the Employees) shall be treated as officers. For purposes
of clause (b), if 2 Employees have the same interest in the Employer, the
Employee having greater annual compensation from the Employer shall be
treated as having a larger interest.
(3) "Percentage Owners":
(a) 5-Percent Owner. - For purposes of this
paragraph, the term "5-percent owner" means -
(i) If the Employer is a corporation, any
person who owns (or is considered as owning within the meaning of 318 of
the Code) more than 5 percent of the outstanding stock of the corporation
or stock possessing more than 5 percent of the total combined voting power
of all stock of the corporation, or
(ii) If the Employer is not a corporation,
any person who owns more than 5 percent of the capital or profits interest
in the Employer.
(b) 1-Percent Owner. - For purposes of this
paragraph, the term "1-percent owner" means any person who would be
described in clause (a) if "1 percent" were substituted for "5 percent"
each place it appears in clause (a).
(c) Constructive Ownership Rules. - For purposes of
subparagraphs (3)(a) and (b)
(i) subparagraph (C) of 318(a)(2) of
the Code shall be applied by substituting "5 percent" for "50 percent," and
55
(ii) in the case of any Employer which
not a corporation, ownership in such employer shall be determined in
accordance with regulations prescribed by the Secretary which shall be
based on principles similar to the principles of 318 of the Code (as
modified by subclause (I)).
(d) Aggregation Rules for Determining Ownership in
Employer. - For purposes of this paragraph (3), the rules of subsections
(b), (c) and (m) of 414 of the Code shall not apply for purposes of
determining ownership in the Employer.
(e) Compensation. - For purposes of this
subsection, the term "compensation" has the meaning given such term by
414(q)(7) of the Code.
(4) "Non-Key Employee" means any Employee or former Employee
who is not a Key Employee.
(C) Unless required otherwise under 416 of the Code and regulations
issued thereunder, the value of a Participant's (or Beneficiary')
individual account under the Plan as of the Determination Date shall be
equal to the sum of:
(a) the net credit balance in his individual accounts
(exclusive of any amounts credited to his Rollover Contribution Account
unless such amounts are required to be included for purposes of 416(g)(4)
of the Code) as of the last Accounting Date; plus
(b) any contributions (other than unrelated Rollover
Contributions) actually made after such Accounting Date but on or prior to
the Determination Date or, in the case of the Determination Date applicable
to the first Plan Year, any contributions made after the Determination Date
that are allocated as of a date within such first Plan Year; plus
(c) the aggregate distributions (exclusive of any
distributions from his Rollover Contribution Account unless such amounts
are required to be included for purposes of 416(g)(4) of the Code) made on
his behalf during the five-year period ending on the Determination Date.
Provided, however, that if any individual is a "Non-Key Employee" with
respect to the Plan for any Plan Year, but such individual was a Key
Employee with respect the Plan for any prior Plan Year, such employee's
accounts under the Plan' shall not be taken into account. Furthermore, for
purposes of determining the value of a Participant's (or beneficiary's)
account under the Plan, such amount shall be increased by the aggregate
distributions made with respect to such Employee under the Plan during the
five-year period ending on the Determination Date, including distributions
under a terminated plan which if it had not been terminated would have been
required to be included in an aggregation group.
(D) The aggregate of the individual accounts under the other
Defined Contribution Plans included in such Aggregation Group shall be
determined separately for each such plan in accordance with 416 of the Code
and regulations issued with respect thereto as of the "determination date"
that is applicable to each such separate plan and that falls within the
same calendar year that the Determination Date applicable to the Plan
falls.
9.3 MINIMUM VESTING FOR TOP-HEAVY PLAN YEAR
During any Plan Year in which the Plan is top-heavy, the vesting
schedule applicable to Employer Contribution Accounts shall be:
56
Years of Service Percentage Vested
Less than 2 Years 0%
2 Years 20%
3 Years 40%
4 Years 60%
5 Years 80%
6 Years 100%
9.4 MINIMUM CONTRIBUTIONS FOR TOP-HEAVY PLAN YEAR
(A) The Employer's Contributions during any Plan Year in which the
Plan is top-heavy on behalf of an Eligible Employee to whom the provisions
of this Section 9.4 are applicable, shall not be less than an amount equal
to the excess, if any, of (1) the lesser of (i) 3% of his IRC 415
Compensation (as defined in Section 7.2(B) above) from the Employer during
the Plan Year and (ii) the highest percentage of IRC 415 Compensation (as
defined in Section 7.2(B) above) which is allocated under Sections 7.3 and
7.4 hereof to a Key Employee for such Plan Year; over (2) any employer
contributions allocated on his behalf under Section 7.4 hereof for such
Plan Year plus any allocations of employer contributions and forfeitures
allocated on his behalf under all other Defined Contribution Plans included
in the Aggregation Group for such Plan Year.
(B) The provisions of this Section 9.4 shall apply to all Eligible
Employees who are in the active service of the Employer on the last
Accounting Date of the Plan Year and who are not Key Employees.
SECTION 10
MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
10.1 PARTICIPANTS TO FURNISH REQUIRED INFORMATION
(A) Each Participant and his Beneficiary will furnish to the
Committee such information as the Committee considers necessary or
desirable for purposes of administering the Plan, and the provisions of the
Plan respecting any payments thereunder are conditional upon the
Participant's or Beneficiary's furnishing promptly such true, full and
complete information as the Committee may request.
(B) Each Participant will submit proof of his age and proof of the
age of each Beneficiary designated or selected by him to the Committee at
such time as is required by the Committee. The Committee will, if such
proof of age is not submitted as required, use as conclusive evidence
thereof, such information as is deemed by him to be reliable, regardless of
the source of such &information. Any adjustment required by reason of lack
of proof or the misstatement of the age of persons entitled to benefits
hereunder, by the Participant or otherwise, will be in such manner as the
Committee deems equitable.
(C) Any notice or information which, according to the terms of the
Plan or the rules of the Committee, must be filed with the Committee, shall
be deemed so filed at the time that it is actually received by the
Committee.
(D) The Employer, the Committee, and any person or persons involved
in the administration of the Plan shall be entitled to rely upon any
certification, statement, or representation made or evidence furnished by
an Employee, Participant or Beneficiary with respect to this age or other
facts required to be determined under any of the provisions of the Plan,
and shall not be liable on account of the payment of any monies or the
doing of any act or failure to act in reliance thereon. Any such
certification, statement, representation, or evidence, upon being duly made
57
or furnished, shall be conclusively binding upon the person furnishing
same; but it shall not be binding upon the Employer, the Committee, or any
other person or persons involved in the administration of the Plan, and
nothing herein contained shall be construed to prevent any of such (parties
from contesting any such certification, statement, representation, or
evidence or to relieve the Employee, Participant, Beneficiary from the duty
of submitting satisfactory proof of any such fact.
10.2 BENEFICIARIES
Each Participant may, on a form provided for that purpose, signed
and filed with the Committee, designate a Beneficiary to receive the
benefit, if any, which may be payable under the Plan in the event of his
death, and each designation may be revoked by such Participant by signing
and filing with the Committee a new designation of Beneficiary form. If a
deceased Participant who had a spouse at the date of his death either
failed to designate a Beneficiary in the manner above prescribed or if his
designated Beneficiary predeceases him, he shall be deemed to have
designated his spouse as his Beneficiary. If a deceased Participant is
survived by a spouse and he had designated a person other than his spouse
as his Beneficiary and such spouse has not consented, in writing witnessed
by a Plan representative or a notary public, to such other person being
designated as the Beneficiary, the Participant shall be deemed to have
revoked his prior designation and to have designated his spouse as his
Beneficiary to receive the death benefit. If a deceased Participant who
did not have a spouse at the date of his death either failed to name a
Beneficiary in the manner above prescribed or if his Beneficiary
predeceases him, the death benefit, if any, which may be payable under the
Plan with respect to such deceased Participant shall be paid to the estate
of the deceased Participant.
10.3 CONTINGENT BENEFICIARIES
In the event of the death of a Beneficiary who survives the
Participant and in the event that, at the Beneficiary's death, there is a
balance credited to the individual account (or accounts) of the
Participant, the amount represented by such credit balance shall be payable
to a person (or persons) designated by the Participant (in the manner
provided in Section 10.2 above) to receive the remaining funds payable in
the event of such contingency or, if no person was so named, then to a
person designated by the Beneficiary (in the manner provided in Section
10.2 above) of the deceased Participant to receive the remaining death
benefits, if any, payable in the event of such contingency; provided,
however, that if no person so designated be living upon the occurrence of
such contingency, then the remaining funds shall be payable to the estate
of such deceased Beneficiary.
10.4 PARTICIPANTS' RIGHTS IN TRUST FUND
No Participant or other person shall have any interest in or any
right in, to or under the Trust Fund, or any part of the assets thereof,
except as and to the extent expressly provided in the Plan.
10.5 BENEFITS NOT ASSIGNABLE
(A) Subject to the provisions of Section 10.5(B) below, no
benefits, rights or accounts shall exist under the Plan which are subject
in any manner to voluntary or involuntary anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge the same shall be null
and void; nor shall any such benefit, right or account under the Plan be in
any manner liable for or subject to the debts, contracts, liabilities,
58
engagements, torts or other obligations of the person entitled to such
benefit, right or account; nor shall any benefit, right or account under
the Plan constitute an asset in case of the bankruptcy, receivership or
divorce of any person entitled under the Plan; and any such benefit, right
or account under the Plan shall be payable only directly to the Participant
or Beneficiary, as the case may be.
(B) Where a "qualified domestic relations order" as defined in
414(p) of the Code has been received by the Committee, the terms and
benefits of the Plan will be considered to have been modified with respect
to the affected Participant to the extent such order requires benefits to
be paid to specified individuals other than the Participant.
10.6 BENEFITS PAYABLE TO MINORS AND INCOMPETENTS
(A) Whenever any person entitled to payments under the Plan shall
be a minor or under other legal disability or in the sole judgment of the
Committee shall otherwise be unable to apply such payments to his own best
interest and advantage (as in the case of illness, whether mental or
physical or where the person not under legal disability is unable to
preserve his estate for his own best interest), the Committee may in the
exercise of its discretion direct all or any portion of such payments to be
made in any one or more of the following ways unless claim shall have been
made therefore by an existing and duly appointed guardian, tutor,
conservator, committee or other duly appointed legal representative, in
which event payment shall be made to such representative:
(1) directly to such person unless such person shall be an
infant or shall have been legally adjudicated incompetent at the time of
the payment;
(2) to the spouse, child, parent or other blood relative to be
expended on behalf of the person entitled or on behalf of those dependents
as to whom the person entitled has the duty of support; or
(3) to a recognized charity or governmental institution to be
expended for the benefit of the person entitled or for the benefit of those
dependents as to whom the person entitled has the duty of support.
(B) The decision of the Committee will, in each case, be final and
binding upon all persons and the Committee shall not be obliged to see to
the proper application or expenditure of any payments so made. Any payment
made pursuant to the power herein conferred upon the Committee shall
operate as a complete discharge of the obligation of the Trustee and of the
Committee.
10.7 CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN
The establishment and maintenance of the Plan will not be construed as
conferring any legal rights upon any Participant to the continuation of his
employment with the Employer, nor will the Plan interfere with the right of
the Employer to discipline, lay off or discharge any Participant. The
adoption and maintenance of the plan shall not be deemed to constitute a
contract between the Employer and any Employee or to be consideration for,
inducement to, or condition of employment of any person.
10.8 NOTIFICATION OF MAILING ADDRESS
(A) Each Participant and other person entitled to benefits
hereunder shall file with the Committee from time to time, in writing, his
post office address and each change of post office address, and any check
representing payment hereunder and any communication addressed to a
Participant or a Beneficiary hereunder at his last address filed with the
Committee (or, if no such address has been filed, then at his last address
59
as indicated on the records of the Employer) shall be binding on such
person for all purposes of the Plan, and neither the Committee nor the
Trustee shall be obliged to search for or ascertain the location of any
such person.
(B) If the Committee, for any reason, is in doubt as to whether
payments are being received by the person entitled thereto, it may by
registered mail addressed to the person concerned at his address last known
to the Committee, notify such person that all unmailed and future payments
shall be henceforth withheld until he provides the Committee with evidence
of his continued life and his proper mailing address or his Beneficiary
provides the Committee with evidence of his death. In the event that (i)
such notification is mailed to such person and his designated Beneficiary,
(ii) the Committee is not furnished with evidence of such person's
continued life and proper mailing address or with evidence of his death,
all payments shall be withheld until a claim is subsequently made by any
such person to whom payment is due under the provisions of the Plan.
10.9 LOST PAYEE
In the event the Administrator is unable, within five years after
payment of a benefit is due to a Participant or Beneficiary to make such
payment because it cannot ascertain the whereabouts of the Participant or
the identity and whereabouts of his Beneficiary of personal representative
by mailing to the last known address shown on the Administrator's records,
and neither the Participant, his Beneficiary or personal representative has
made written claim therefor before the expiration of such five years, then,
and in such case, the Administrator shall direct that such amount shall be
forfeited and applied towards future Employer Contributions to the Plan;
provided, however, that such amount shall be reinstated if and in the event
the said Participant or his Beneficiary or personal representative shall
make a valid claim therefor upon presentation of proper identification.
10.10 WRITTEN COMMUNICATIONS REQUIRED
Any notice, request, instruction, or other communication to be
given or made hereunder shall be in writing and either personally delivered
to the addressee or deposited in the United State mail fully postpaid and
properly addressed to such addressee at the last address for notice shown
on the Committee's records.
10.11 BENEFITS PAYABLE AT OFFICE OF TRUSTEE
All benefits hereunder, and installments thereof, shall be payable
at the office of the Trustee.
10.12 APPEAL TO COMMITTEE
(A) A Participant or Beneficiary who feels he is being denied any
benefit or right provided under the Plan must file a written claim with the
Committee. All such claims shall be submitted on a form provided by the
committee which shall be signed by the claimant and shall be considered
filed on the date the claim is received by the Committee.
(B) Upon the receipt of such a claim and in the event claim is
denied, the Committee shall, within a reasonable period of time (generally
90 days), provide such claimant a written statement which shall be
delivered or mailed to the claimant by certified or registered mail to his
last known address, which statement shall contain the following:
(1) the specific reason or reasons for the denial of benefits;
(2) a specific reference to the pertinent provisions of the
Plan upon which the denial is based;
60
(3) a description of any additional material or information
which is necessary; and
(4) an explanation of the review procedure provided below;
provided, however, in the event that special circumstances require an
extension of time for processing the claim, the Committee shall provide
such claimant with such written statement described above not later than
180 days after receipt of the claimant's claim, but, in such event, the
Committee shall furnish the claimant, within 90 days after its receipt of
such claim, written notification of the extension explaining the
circumstances requiring such extension and the date that it is anticipated
that such written statement will be furnished.
(C) Within 90 days after receipt of a notice of a denial of
benefits as provided above, the claimant or his authorized representative
may request, in writing, to appear before the Committee for a review of his
claim. In conducting its review, the Committee shall consider any written
statement or other evidence presented by the claimant or his authorized
representative in support of his claim. The Committee shall give the
claimant and his authorized representative reasonable access to all
pertinent documents necessary for the preparation of his claim.
(D) Within 60 days after receipt by the Committee of a written
application for review of his claim, the Committee shall notify the
claimant of its decision by delivery or by certified or registered mail to
his last known address; provided, however, in the event of special
circumstances which require an extension of time for processing such
application, the Committee shall notify the claimant of its decision not
later than 120 days after receipt of such application, but in such event,
the Committee shall furnish the claimant, within 60 days after its receipt
of such application, written notification of the extension explaining the
circumstances requiring such extension and the date that it is anticipated
that its decision will be furnished. The decision of the Committee shall
be in writing and shall include the specific reasons for the decision
presented in a manner calculated to be understood by the claimant and shall
contain references to all relevant Plan provisions on which the decision
was based. The decision of the Committee shall be final and conclusive.
SECTION 11
MISCELLANEOUS PROVISIONS REGARDING THE EMPLOYER
11.1 EMPLOYER'S CONTRIBUTION IRREVOCABLE
The Employer shall have no right, title or interest in the Trust
Fund or in any part thereof, and no contributions made thereto shall revert
to the Employer, except as provided in Paragraph 2 of Article III of the
Trust Agreement.
11.2 ABSENCE OF RESPONSIBILITY
Subject to any applicable provisions of law, neither the Employer
nor any of the officers, employees, agents nor any members of its board of
directors or other governing board nor any partner or sole proprietor,
guarantees in any manner the payment of benefits hereunder.
11.3 AMENDMENT OF PLAN
(A) The Plan may be amended from time to time in any respect
whatever by resolution of the board of directors of the Company specifying
such amendment, subject only to the following limitations:
(1) Under no condition shall such amendment result in or permit
the return or repayment to any Employer of any property held or acquired by
61
the Trustee hereunder or the proceeds thereof or result in or permit the
distribution of any such property for the benefit of anyone other than the
Participants and their Beneficiaries, except to the extend provided by
Section 11.6 hereof with respect to expenses of administration.
(2) Under no condition shall such amendment change the duties
or responsibilities of the Trustee hereunder without its written consent.
(B) Subject to the foregoing limitations, any amendment may be made
retroactively which, in the judgment of the Committee, is necessary or
advisable provided that such retroactive amendment does not deprive a
Participant, without his consent, of a right to receive benefits hereunder
which have already vested and matured in such Participant, except such
modification or amendment as shall be necessary to comply with any laws or
regulations of the United States or of any state to qualify this as a tax-
exempt plan and trust.
(C) The participation in the Plan of Employers other than the
Company shall not limit the power of the Company under the foregoing
provisions; provided, however, that the Company shall deliver a copy of
each amendment to the Plan to each other Employer within 30 days of such
amendment. The provisions of the Plan and any amendments to the Plan by
the Company shall be binding upon all other Employers unless such other
Employer modifies the provisions of the Plan as it pertains only to its own
employees by the adoption, by formal action on its part in the manner
described in Section 11.7 hereof, of a Supplement to the Plan specifying
such modifications which shall pertain only to its employees; and each
Employer shall have the right to withdraw from the Plan by formal action on
its part, in the manner described in Section 11.7 hereof, specifying its
determination to withdraw. Any such withdrawing Employer shall furnish the
Committee and the Trustee with evidence of the formal action of its
determination to withdraw.
(D) Any such withdrawal may be accompanied by such modifications to
the Plan as such Employer shall deem proper to continue a Defined
Contribution Plan for its employees separate and distinct from the Defined
Contribution Plan herein set forth. A withdrawal by any Employer without
any provision for the continuation of a plan for its employees shall
constitute a termination of the Plan with respect to that Employer.
Withdrawal from the Plan by any Employer shall not affect the continued
operation of the Plan with respect to the other Employers; provided,
however, in the event of the withdrawal of an Employer which is in a group
of Employers with respect to which the Plan constitutes a single plan and
in the event that provision is made for the continuation of a Defined
Contribution Plan for its Employees separate and distinct from the Defined
Contribution Plan herein set forth, the share of the assets of the Trust
Fund allocable to such group of Employers which is transferred to such
other Defined Contribution Plan shall be determined by the Committee but
shall be subject to the provisions of Section 11.5 hereof.
(E) Any Supplement to the Plan adopted by an Employer or Employers
shall apply only to the employees of the Employer or Employers adopting
such Supplement and shall not affect the continued operation of the Plan
with respect to any other Employers.
11.4 TERMINATION OF PLAN
(A) The Plan may be terminated by the Employers at any time by (1)
formal action in the manner described in Section 11.7 hereof, on the part
of each Employer then a party to the Plan specifying (a) that the Plan is
being terminated and (b) the date as of which the termination is to be
effective and (2) notifying the Committee and the Trustee of such
termination. Any successor business to an Employer may provide for
62
continuation of the Plan by formal action on its part in the manner
described in Section 11.7 hereof. The Plan may be terminated in the manner
described above with respect to one, but less than all, of the Employers
theretofore parties hereto and the Plan continued for the remaining
Employer or Employers. The Plan shall automatically terminate as to a
particular Employer only upon adjudication by a court of competent
jurisdiction that such Employer is bankrupt or insolvent (whether such
proceedings be voluntary or involuntary), upon dissolution of such Employer
or upon its liquidation, merger or consolidation without provisions being
made by its successor, if any, for the continuation of the Plan.
(B) Upon termination of the Plan in accordance with the provisions
of Section 11.4(A) above, the Committee shall determine the share of the
value of the assets of the Trust Funds which is attributable to each
Employer (or group of Employers) with respect to which the Plan represents
a single plan as described in Section 2.5 hereof. The Committee shall then
determine whether distribution on behalf of the Participants and
Beneficiaries entitled to benefits under the Plan shall be by payment in
cash, by transfer to Individual Retirement Accounts established under 408
of the Code, by maintenance of another or substituted trust fund, by the
purchase of insured annuities, or shall be in kind based on the then market
value. As soon as practicable after receipt by the Employer of
notification from the Internal Revenue Service evidencing its approval of
the proposed distribution of assets upon termination of the Plan and after
payment of all expenses and costs, the Committee shall direct the Trustee
to distribute, in the manner of distribution determined by the Committee,
the amount then standing to the credit of the account of each applicable
Participant or Beneficiary.
11.5 MERGER OF PLAN
In the case of the merger of consolidation of the Plan with, or the
transfer of assets of liabilities to, another qualified plan, each
Participant must be entitled to receive a benefit, upon termination of such
other qualified plan after such merger, consolidation or transfer, which is
at least equal to the benefit which he would have been entitled to receive
immediately before the merger, consolidation or transfer if the Plan had
been terminated at that time.
11.6 EXPENSES OF ADMINISTRATION
The Employer may pay all expenses incurred in the establishment and
administration of the Plan, including expenses and fees of the Trustee, but
it shall not be obligated to do so, and any such expenses not so paid by
the Employer shall be paid from the Trust Fund.
11.7 FORMAL ACTION BY EMPLOYER
Any formal action herein permitted or required to be taken by an
Employer shall be:
(a) if and when a partnership, by written instrument executed
by one or more of its general partners or by written instrument executed by
a person or group of persons who has been authorized by written instrument
executed by one or more general partners as having authority to take such
action;
(b) if and when a proprietorship, by written instrument
executed by the proprietor or by written instrument executed by a person or
group of persons who has been authorized by written instrument executed by
the proprietor as having authority to take such action;
63
(c) if and when a corporation, by resolution of its board of
directors or other governing board, or by written instrument executed by a
person or group of persons who has been authorized by resolution of its
board of directors or other governing board as having authority to take
such action; or
(d) if and when a joint venture, by formal action on the part
of the joint ventures in the manner described above.
SECTION 12
ADMINISTRATION
12.1 ADMINISTRATION BY COMMITTEE
The Plan will be administered by an administration committee (herein
referred to as the "Committee"), consisting of a chairman and at least two
additional members, each of whom will be appointed by the board of
directors of the Company. Any member of the Committee may resign by
delivering his written resignation to the board of directors of the Company
and to the other members, if any, of the Committee. The board of directors
of the Company may remove any member of the Committee by so notifying the
member and other Committee members, if any, in writing. Vacancies on the
Committee shall be filled by action of the board of directors of the
Company. The Committee shall be the administrator of the Plan.
12.2 OFFICERS AND EMPLOYEES OF THE COMMITTEE
The Committee may appoint a secretary who may, but need not, be a
member of the Committee and may employ such agents, clerical and other
services, legal counsel, accountants and actuaries as may be required for
the purpose of administering the Plan. Any person or firm so employed may
be a person or firm then, therefore or thereafter serving the Employer in
any capacity. The Committee and any individual member of the Committee and
any agent thereof shall be fully protected when acting in a prudent manner
and relying in good faith upon the advice of the following professional
consultants or advisors employed by the Employer or the Committee: any
attorney insofar as legal matters are concerned, any certified public
accountant insofar as accounting matters are concerned, and any enrolled
actuary insofar as actuarial matters are concerned.
12.3 ACTION BY COMMITTEE
(A) A majority of the members of the Committee shall constitute a
quorum for the transaction of business and shall have full power to act
hereunder. The Committee may act either at a meeting at which a quorum is
present or by a writing subscribed by at least a majority of the members of
the Committee then serving. Any written memorandum signed by the secretary
or any member of the Committee who has been authorized to act on behalf of
the Committee shall have the same force and effect as a formal resolution
adopted in open meeting. Minutes of all meetings of the Committee and a
record of any action taken by the Committee shall be kept in written form
by the secretary appointed by the Committee or, if no secretary has been
appointed by the Committee, by an individual member of the Committee. The
Committee shall give to the Trustee any order, direction, consent or advice
required under the terms of the Trust Agreement, and the Trustee shall be
entitled to rely on any instrument delivered to it and signed by the
secretary or any authorized member of the Committee as evidencing the
action of the Committee.
(B) A member of the Committee may not vote or decide upon any
matter relating solely to himself or vote in any case in which his
64
individual right or claim to any benefit under the Plan is particularly
involved. If, in any case in which any Committee member is so disqualified
to act, the remaining members cannot agree or if there is only one
individual member of the Committee, the board of directors of the Company
will appoint a temporary substitute member to exercise all of the powers of
a qualified member concerning the matter in which the disqualified member
is not qualified to act.
12.4 RULES AND REGULATIONS OF COMMITTEE
The Committee shall have the authority to make such rules and
regulations and to take such action as may be necessary to carry out the
provisions of the Plan and will, subject to the provisions of the Plan,
decide any questions arising in the administration, interpretation and
application of the Plan, which decisions shall be conclusive and binding on
all parties. The Committee may allocate or delegate any part of its
authority and duties as it deems expedient.
12.5 POWERS OF COMMITTEE
(A) In order to effectuate the purposes of the Plan, the Committee
shall have the following powers:
(1) to make all determinations and computations concerning the
benefits, credits and debits to which any Participant, or other
Beneficiary, is entitled under the Plan;
(2) to determine all questions relating to the eligibility of
employees to become Participants and to determine the amount of
Compensation of each Participant;
(3) to determine all questions relating to acceptance of any
Rollover Contributions to the Plan;
(4) to make rules and regulations for the administration of
the Plan which are not inconsistent with the terms and provisions hereof
and to fix the taxable year of the Trust as required for tax return
purposes and advise the Trustee thereof in writing;
(5) to construe the Plan and to make equitable adjustments for
any mistakes or errors made in the administration of the Plan;
(6) to determine and resolve in its sole discretion all
questions relating to the administration of the Plan and Trust (a) when
differences of opinion arise between the Employer, the Trustee, a
Participant, or any of them and (b) whenever it is deemed advisable to
determine such questions in order to promote the uniform and
nondiscriminatory administration of the Plan for the greatest benefit of
all parties concerned;
(7) to authorize and direct the Trustee to pay from the Trust
Fund all costs and expenses incurred by the Committee in the administration
of the Plan;
(8) to determine whether a Participant is Totally and
Permanently Disabled for the purposes of Section 8 hereof, and for this
purpose it shall require proof in such form as it may desire, including the
certificate of a duly licensed physician; and
(9) to appoint, in its discretion, in accordance with the
provisions of the Trust Agreement, one or more Investment Managers to
manage, including the power to acquire or dispose of, all or any portion of
the assets of the Plan and Trust Fund.
(B) The foregoing list of express powers is not intended to be
either complete or conclusive, and the Committee shall, in addition, have
such powers as it may reasonably determine to be necessary or appropriate
in the performance of its powers and duties under the Plan.
65
12.6 DUTIES OF COMMITTEE
(A) The Committee shall, as part of its general duty to supervise
and administer the Plan:
(1) establish and maintain, or cause to be maintained, the
individual accounts described in Section 6.1 hereof and direct the
maintenance of such other records and the preparation of such forms as are
required for the efficient administration of the Plan;
(2) give the Trustee specific directions in writing with
respect to:
(a) the Investment Fund elections of the
Participants;
(b) the making of distribution payments, giving the
names of the payees, the amounts to be paid and the time or times when
payments shall be made; and
(c) the making of any other payments which the
Trustee is not by the terms of the Trust Agreement authorized to make
without a direction in writing by the Committee.
(3) prepare an annual report for the Employer, as of the last
day of each Plan Year, in such form as may be required by the Employer;
(4) maintain records of the age and amount of Compensation of
each Employee;
(5) comply with all applicable lawful reporting and disclosure
requirements of the Employee Retirement Income Security Act of 1974; and
(6) comply (or transfer responsibility for compliance to the
Trustee) with all applicable Federal income tax withholding requirements
for distribution payments imposed by the Tax Equity and Fiscal
Responsibility Act of 1982.
(B) The foregoing list of express duties is not intended to be
either complete or conclusive, and the Committee shall, in addition,
exercise such other powers and perform such other duties as it may deem
necessary, desirable, advisable or proper for the supervision and
administration of the Plan.
12.7 INDEMNIFICATION OF MEMBERS OF COMMITTEE
To the extent not covered by insurance or if there is a failure to
provide full insurance coverage for any reason and to the extent
permissible under corporate by-laws and other applicable laws and
regulations, the Company agrees to hold harmless and indemnify the members
of the Committee and all employees, agents and other fiduciaries rendering
services to the Committee, the Plan or Trust against any and all claims and
causes of action by or on behalf of any and all parties whomsoever, and all
losses therefrom, including, without limitation, costs of defense and
attorneys' fees, based upon or arising out of any act or mission relating
to or in connection with the Plan and Trust Agreement other than losses
resulting from any such person's fraud or willful misconduct.
12.8 PLAN FIDUCIARIES
(A) The Trustee is the named fiduciary hereunder with respect to
the powers, duties and responsibilities of investment of the Trust Fund and
the Committee is the named fiduciary hereunder with respect to the other
powers, duties and responsibilities of the administration of the Plan.
Certain powers, duties and responsibilities of each of said fiduciaries are
specifically delegated to others under the provisions of the Plan and Trust
Agreement and other powers, duties and responsibilities of any fiduciaries
may be delegated by written agreement to others to the extent permitted
under the provisions of the Plan and Trust Agreement.
66
(B) The powers and duties of each fiduciary hereunder, whether or
not a named fiduciary, shall be limited to those specifically delegated to
each of them under the terms of the Plan and Trust Agreement. It is
intended that the provisions of the Plan and Trust Agreement allocate to
each fiduciary the individual responsibilities for the prudent execution of
the functions assigned to each fiduciary. None of the allocated
responsibilities or any other responsibilities shall be shared by two or
more fiduciaries unless such sharing shall be provided by a specific
provision in the Plan or the Trust Agreement. Whenever one fiduciary is
required by the Plan or the Trust Agreement to follow the directions of
other fiduciary, the two fiduciaries shall not be deemed to have been
assigned a share of any responsibility, but the responsibility of the
fiduciary giving the directions shall be deemed to be his sole
responsibility and the responsibility of the fiduciary receiving those
directions shall be to follow some insofar as such instructions on their
face are proper under applicable law. Any fiduciary may employ one or more
persons to render advice with respect to any responsibility such fiduciary
has under the Plan or Trust Agreement.
(C) Each fiduciary may, but need not, be an employee, partner,
director or officer of the Employer. Nothing in the Plan shall be
construed to prohibit any fiduciary from:
(1) serving in more than one fiduciary capacity with respect
to the Plan and Trust Agreement;
(2) receiving any benefit to which he may be entitled as a
Participant or Beneficiary in the Plan, so long as the benefit is computed
and paid on a basis which is consistent with the terms of the Plan as
applied to all other Participants and Beneficiaries; or
(3) receiving any reasonable compensation for services
rendered, or for the reimbursement of expenses properly and actually
incurred in the performance of his duties with respect to the Plan, except
that no person so serving who already receives full-time pay from the
employer shall receive compensation from the Plan, except for reimbursement
of expenses properly and actually incurred.
(D) Each fiduciary shall be bonded as required by applicable law or
statute of the United States, or of any state having appropriate
jurisdiction, unless such bond may under such law or statute be waived by
the parties to the Trust Agreement. The Employer shall pay the cost of
bonding any fiduciary who is an employee or partner of the Employer.
12.9 APPLICABLE LAW
The Plan will, unless superseded by federal law, be construed and
enforced according to the laws of the State of Arkansas, and all provisions
of the Plan will, unless superseded by federal law, be administered
according to the laws of the said state.
SECTION 13
TRUST FUND
13.1 PURPOSE OF TRUST FUND
A Trust Fund has been created and will be maintained for the
purposes of the Plan, and the monies thereof will be invested in accordance
with the terms of the agreement and declaration of trust which forms a part
of the Plan. All contributions will be paid into the Trust Fund, and all
benefits under the Plan will be paid from the Trust Fund.
67
13.2 BENEFITS SUPPORTED ONLY BY TRUST FUND
Any person having any claim under the Plan will look solely to the
assets of the Trust Fund for satisfaction.
13.3 TRUST FUND APPLICABLE ONLY TO PAYMENT OF BENEFITS
The Trust Fund will be used and applied only in accordance with the
provisions of the Plan, to provide the benefits thereof, and no part of the
corpus or income of the Trust Fund will be used for, or diverted to,
purposes other than the exclusive benefit of Participants and other persons
thereunder entitled to benefits, except to the extent provided in Section
11.6 hereof with respect to expenses of administration.
SECTION 14
LOANS TO PARTICIPANTS
14.1 GENERAL PROCEDURE
Subject to such rules and regulations of uniform application as the
Employer may from time to time promulgate with respect to the amount of
loans, maturity dates, interest rates and security, if any, the Employer,
upon written application of a Participant upon a form prepared by the
Employer, may, in its absolute discretion, direct the Trustee to make a
loan to such Participant upon such terms as the Employer deems appropriate.
The loan program shall be administered by the Committee or such sub-
committee or person as it may appoint ("Loan Administrator"). The Loan
Administrator shall adopt written policies and procedures for the Plan's
loan program and such written policies and procedures are hereby
incorporated by reference. A Participant wishing to obtain a loan from the
Plan shall apply to the Loan Administrator by submitting a written loan
application which can be obtained from the Loan Administrator upon request.
All loans shall be made available to Participants who are "Parties in
Interest" as defined in 3(14) of ERISA without regard to such Participant's
race, color, religion, age, sex or national origin.
14.2 AMOUNT OF LOANS
The Loan Administrator may authorize loans in an amount not less
than $1,000 and not more than an amount equal to 50% of the present value
of a Participant's vested accounts under the Plan; provided that such loan
amount shall in no event exceed the lesser of (a) $50,000 reduced by the
excess (if any) of the highest outstanding balance of loans from the Plan
to the Participant during the preceding one year period over the
outstanding balance of loans from the Plan to the Participant as of the
date the loan is made, or (b) the greater of (i) one-half of the present
value of the Participant's nonforfeitable accrued benefit under the Plan,
or (ii) $10,000.
14.3 LOAN CONDITIONS
If approved, each loan to a Participant pursuant to this Section 14
shall comply with the following conditions:
(a) Written Instrument. It shall be evidenced by a negotiable
promissory note.
(b) Interest Rate. The loan shall bear a reasonable rate of
interest which shall be commensurate with the prevailing interest rate
charged by persons in the business of lending money for loans made under
similar circumstances. Subject to this requirement, the Loan Administrator
shall develop rules for determining the interest to be charged on Plan
loans.
68
(c) Term. The loan, by its terms, must require level
amortization of repayments (to be made not less frequently than quarterly)
over a period not extending beyond five (5) years; provided, however, in
the case of a home loan as described in 72(p) of the Code, such loan may be
for a term in excess of five (5) years.
(d) Adequate Security. The loan shall be secured by up to 50%
of the Participant's entire right, title and interest in his accounts under
the Plan. However, a loan only may be made from a Participant's Salary
Deferral Contribution Account, Employer Contribution Account and Rollover
Account (excluding any such accounts transferred from the Thrift Plan), and
only such accounts may be used as collateral to secure the loan. In
addition, the Loan Administrator may require additional security (and shall
require such additional security when the loan amount exceeds 50% of the
Participant's nonforfeitable account balance under the Plan as determined
on the date the loan proceeds are distributed to the Participant) to be
pledged to the Plan by the Participant which may be sold, foreclosed upon
or otherwise disposed of upon default of repayment of the loan in such a
manner that the Plan is protected against loss of principal and interest as
a result of the default. Any Participant who pledges any portion of his
vested account balances under the Plan also shall be required to execute an
Automatic Payroll Deduction Agreement under which loan payments will be
deducted from the Participant's Compensation on a payroll date basis until
the amount of the loan plus interest accrued thereon is paid in full.
(e) Default. In addition to any other conditions or events
the Loan Administrator may specify, a loan shall be considered in default
if the Participant fails to pay any installment when due and such failure
is not cured within sixty (60) days. Any default by the Participant shall,
at the election of the Loan Administrator, cause the remaining outstanding
balance of the loan to be due and payable at once. In addition, the Loan
Administrator shall proceed against the security pledged by the Participant
in connection with the loan at such time and in such manner as it
determines to be in the best interest of the Plan. The Loan Administrator
is expressly authorized to delay enforcement of any security interest in
the Participant's Accounts under the Plan until such time as the
Participant is entitled to a distribution under the terms of the Plan and
the Code provided such delay results in no loss of income or principal to
the Plan. At such time as the Participant is entitled to a distribution
under the terms of the Plan, the Loan Administrator may offset the vested
portion of the Participant's account balances under the Plan against the
remaining unpaid balance of the loan plus interest accrued thereon.
(f) Liquidation on Maturity. Each loan shall be due and
payable in full by the Participant not later than the earliest of (1) the
maturity date set forth in the promissory note, (2) the Participant's
termination of employment with Employer, or (3) the termination of the
Plan. In any event, all loans will mature at the time provided for any
distribution to the Participant from the Plan, and no distribution shall be
made to any Participant, beneficiary or beneficiaries or to the estate of a
Participant unless and until all loans to such Participant, together with
interest accrued thereon, have been paid in full.
(g) Investment Gain or Loss. To the extent a Participant's
loan is secured by his/her Accounts, the investment gain or loss
attributable to the loan shall not be included in the calculation or
allocation of the increase or decrease in fair market value of the general
assets of the Plan. The entire gain or loss (including any gain or loss
attributable to interest payments or default) shall be allocated to the
Accounts of the Participant.
69
IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this instrument
to be executed by its duly authorized officers effective as of
January 1, 1993.
TYSON FOODS, INC.
By: __________________________
President
ATTEST:
______________________________
70
AMENDMENT TO THE
RETIREMENT SAVINGS PLAN OF
TYSON FOODS, INC.
The beginning clause of subsection 8.4(B) is hereby amended as
follows:
"(B) Notwithstanding subsection (A) above, all distributions of
any amounts from a Participant's After-Tax Contribution Account and
Employer Contribution Account attributable to such accounts transferred
from the merged Tyson Thrift Plan shall be subject to the following
additional provisions:"
71
AMENDMENTS TO THE
RETIREMENT SAVINGS PLAN OF
TYSON FOODS, INC.
The introduction to the Plan set forth on pages 1 and 2 is amended
as follows:
(a) The comma and words "to-wit," at the end of the last
sentence are deleted and a period is inserted following the word "Plan".
(b) A new paragraph is then added at the end of page 2 as
follows:
"The Plan, as restated herein, also reflects
amendments associated with the merger into this Plan, effective December
30, 1994, of the Arctic Alaska Fisheries Corporation Profit Sharing/Savings
Plan (the "Arctic Plan"). Employer acknowledges receipt of all of the
assets of the Arctic Plan effective December 30, 1994. Accordingly, the
assets transferred from the Arctic Plan shall be held, administered and
distributed for the purposes and in the manner set out in the following
restated Plan. Following the merger of the Arctic Plan into this Plan, the
accounts previously referred to as "Elective Contribution Accounts" shall
be administered under this Plan as part of the Participant's "Salary
Deferral Contribution Account", the accounts previously referred to as
"Matching Contribution Accounts" shall be administered under this Plan as
part of the Participant's "Employer Contribution Account" and the accounts
previously referred to as "Rollover Contribution Accounts" shall be
administered under this Plan as part of the Participant's "Rollover
Contribution Account"; provided, however, that the amounts transferred from
the Arctic Plan and administered as accounts under this Plan shall continue
to be accounted for separately, as permitted under Section 6.1 of this
Plan."
Section 8.4 is hereby amended as follows:
"8.4 Methods of Distribution
(A) Except as may be required under Sections 8.4(B), 8.4(C),
8.3(A), 8.10 and 8.11, all distributions made to a Participant or his
beneficiaries shall be made by the Trustee in one of the three following
methods:
(1) Lump Sum. By payment in a lump sum.
(2) Installments. By payment in equal installments
over a period certain which does not extend beyond the lesser of twenty
(20) years or the life expectancy of the Participant or the joint life
expectancies of such Participant and the Participant's beneficiary
determined as of the date that payment of benefits commences, subject to
the following requirements:
(a) Fifty Percent (50%) Present Value
Test. The present value of payments to be made to the Participant must be
more than fifty percent (50%) of the present value of the total payments to
be made to the Participant and the Participant's beneficiaries, all as
determined as of the later of such Participant's normal retirement date or
the Participant's termination of employment; and
(b) Equal Installments. Payments must
be in the form of annual or more frequent installments provided the present
value of all such periodic payments payable to the Participant or his or
her beneficiary must be equal to the immediate lump sum otherwise
distributable to the Participant had a lump sum settlement been made.
(3) Combination. By a combination of (1) and (2).
72
The method of distribution to the Participant or his beneficiaries
shall be implemented by the Committee, in accordance with the directions of
the Participant in effect at the time the Participant's employment is
terminated.
(B) Except as may be required under Sections 8.3(A), 8.10 and
8.11, all distributions made to a Participant or his beneficiaries
ttributable to amounts transferred to this Plan from the Arctic Plan shall
be made by the Trustee in one of the three following methods:
(1) Automatic Qualified Joint and Survivor
Annuity (or Life Annuity). A Participant who is married and begins to
receive payments under the Plan shall receive payments in the form of a
Qualified Joint and Survivor Annuity, unless the Participant, with the
consent of his spouse, has elected otherwise during the election period
which shall be the 90-day period ending on the date benefit payments would
commence). An unmarried Participant shall receive his benefits in the form
of a life annuity, with monthly payments payable for 120 months certain and
thereafter during his lifetime, unless the Participant elects otherwise
during such election period. Any election shall be in writing and may be
changed at any time.
(2) Automatic Preretirement Survivor
Annuity. If a Participant who is married and at least partially vested
dies before the date upon which his retirement benefits were to commence,
such Participant's surviving spouse shall receive payments under this Plan
in the form of a Preretirement Survivor Annuity, unless the Participant
with the consent of his spouse has elected otherwise during the election
period, which shall begin on the first day of the Plan Year in which the
Participant attains age 35 (or for a Participant who is separated from
service the date of such separation with respect to benefits accrued before
separation) and end on the date of the Participant's death. Any election
shall be in writing and may be changed at any time. The surviving spouse
may elect to have such annuity distributed immediately or at a later date
not later than the date the Participant would have attained his Normal
Retirement Date. Also, the surviving spouse may elect to receive, in lieu
of such annuity, any form of payment permitted under 8.4(B)(3) below.
(3) In the event a Participant (or
surviving spouse) elects pursuant to 8.4(B)(1) or (2) not to receive
retirement or death benefits in the forms described therein, such
distributions shall be made by the Trustee in one of the methods described
in 8.4(A). Additionally, the following distribution methods shall be
available:
An immediate or deferred nontransferable
annuity providing fixed or variable income (i) for the life of the
Participant, with or without a specified period certain, or (ii) over the
lives of the Participant and his designated beneficiary, with or without a
specified period certain.
(C) Notwithstanding subsection (A) above, all distributions of
any amounts from a Participant's After-Tax Contribution Account and
Employer Contribution Account attributable to such accounts transferred
from the merged Tyson Thrift Plan shall be subject to the following
additional provisions:
(1) Annuity Option. Such Participant who retires
and begins to receive payments under the Plan shall have, in addition to
the distribution options available under Section 8.4(A) above, the right to
elect to receive payment from such account in the form of a life annuity
(or, if married, in the form of a Qualified Joint and Survivor Annuity).
The Participant (and, if married, with the consent of his spouse) also may
elect during the election period (which shall be the 90-day period ending
73
on the Annuity Starting Date) to receive payments from such account in the
form of a straight life annuity or a straight life annuity with a ten-year
guarantee. Any election shall be in writing and may be changed at any
time.
(2) Preretirement Survivor Annuity. If a
Participant who is married dies before the date upon which his retirement
benefits were to commence, such Participant's surviving spouse shall have,
in addition to the distribution options available under Section 8.4(A)
above, the right to elect to receive payment from such account in the form
of a Preretirement Survivor Annuity. The spouse also may elect during the
election period, which shall begin on the first day of the Plan Year in
which the Participant attains age 35 (or for a Participant who is separated
from service the date of such separation with respect to benefits accrued
before separation) and end, on the date benefits commence, to receive
payments from such account in the form of a straight life annuity or a
straight life annuity with a ten-year guarantee. Any election shall be in
writing and may be changed at any time. The surviving spouse may elect to
have such annuity distributed immediately or at a later date not later than
the date the Participant would have attained the Normal Retirement Date.
For purposes of this Section 8.4 and elsewhere in this Plan, the following
terms shall have the following meanings:
(1) 'Annuity Starting Date' means the first day
of the month following the date the Insurer receives from the Plan
Administrator such written notice of a distribution as shall be required by
the Insurer, or, if later, the first day of the month specified by
Participant or Beneficiary for the commencement of benefit payment(s) in
accordance with Section 8 hereof.
(2) 'Qualified Joint and Survivor Annuity' means an
annuity for the life of the Participant with a Survivor Annuity for the
life of his/her spouse which is one-half of the amount of the annuity
payable during the joint lives of the Participant and his/her spouse and
which is the actuarial equivalent of a single life annuity for the life of
the Participant.
(3) 'Preretirement Survivor Annuity' means an
annuity for the life of the surviving spouse of a deceased Participant
that has an actuarial present value that is equal to 100% of the
balance in the Participant's account as of the date of the
Participant's death.
(D) Notwithstanding any other Plan provision to the contrary,
all Plan distributions shall comply with the requirements of 401(a)(9) of
the Code and the regulations thereunder, including 1.401(a)(9)-2."
The first sentence of subsection 8.10(4) is hereby amended as follows:
"Except as provided below, a Participant may withdraw all or any
portion of (i) his Salary Deferral Contribution Account, (ii) the vested
portion of that part, if any, of his Employer Contribution Account from the
Company's former Thrift Plan, (iii) that part of his Rollover Account from
the Company's former Thrift Plan, and (iv) with the Participant's spouse's
consent, the vested amounts attributable to his elective and matching
contributions transferred to this Plan from the Arctic Plan, only in the
event that he furnishes satisfactory evidence to the Committee that the
withdrawal is on account of 'hardship'."
The second and third paragraphs of subsection 8.10(4)(b) are hereby
amended as follows:
74
"Provided, however, that the provisions of (b)(ii) - (iv) shall
not apply if the Participant's withdrawal under this Section 8.10(4) does
not include any portion of amounts attributable to his elective deferrals
under Code 402(g).
Notwithstanding the above language of this paragraph (4) of
this Section 8.10, the following additional rules shall apply regarding the
ability to make hardship withdrawals from amounts attributable to a
Participant's elective deferrals:
(a) income allocable to a Participant's Salary
Deferral Contribution Account but credited after December 31, 1988 may not
be withdrawn;
(b) a Participant may not withdraw any non-elective
Employer contributions which were credited to a Participant's Salary
Deferral Contribution Account after December 31, 1988 because they were
treated as Salary Deferral Contributions for purposes of Section 3.1(E) of
the Plan;
(c) effective April 1, 1993, no income, regardless
of when allocated, may be withdrawn from a Participant's Salary Deferral
Contribution Account; and
(d) no income allocable to elective deferrals
transferred to this Plan from the Arctic Plan may be withdrawn."
Subsection 8.10(6) is hereby amended as follows:
"A Participant may elect to withdraw, as of any Accounting Date,
part or all of his After-Tax Contribution Account and/or, with the
Participant's spouse's consent, amounts attributable to his rollover
contributions transferred to this Plan from the Arctic Plan."
Subsection 11.4(B) is hereby amended as follows:
"(B) Upon termination of the Plan in accordance with the provisions
of Section 11.4(A) above, the Committee shall determine the share of the
value of the assets of the Trust Funds which is attributable to each
Employer (or group of Employers) with respect to which the Plan represents
a single plan as described in Section 2.5 hereof. As soon as practicable
after receipt by the Employer of notification from the Internal Revenue
Service evidencing its approval of the proposed distribution of assets upon
termination of the Plan and after payment of all expenses and costs, the
Committee shall direct the Trustee to distribute, in accordance with
Section 8 hereof, the amount then standing to the credit of the account of
each applicable Participant or Beneficiary.
Additionally, withdrawals of elective deferrals will be permitted under the
following circumstances, subject to Code 401(k)(10):
(a) the sale or other disposition by a corporation
of at least 85% of all of the assets of the trade or business of the
Employer, but only with respect to a Participant who continues employment
with the corporation acquiring the assets, as provided in Reg. 1.401(k)-
1(d)(1)(ii)(3).
(b) the sale or other disposition by a corporation
of its interests in a subsidiary to an unrelated entity, but only with
respect to a Participant who continues in the employ of the subsidiary, as
provided in Reg. 1.401(k)-1(d)(1)(ii)(4).
75
(c) the termination of the Plan without the
establishment or maintenance of a successor defined contribution plan other
than an employee stock ownership plan, as defined in Code 4975(e)(7) within
one year of the date of termination of this Plan, as provided in Reg.
1.401(k)-1(d)(1)(ii) and (iii).
Withdrawals under this paragraph will be in accordance with Section 8
hereof, including spousal consent requirements, if applicable."
The last sentence of Section 14.1 is hereby amended as follows:
"Except as limited by such rules, regulations and procedures as the
Employer may from time to time promulgate, all loans shall be made
available to Participants who are 'Parties in Interest' as defined in 3(14)
of ERISA without regard to such Participant's race, color, religion, age,
sex or national original."
76
RESOLUTION REGARDING AMENDMENT NO. 3
TO RETIREMENT SAVINGS PLAN OF TYSON FOODS, INC.
RESOLVED, that effective April 1, 1995, Section 8.10 of the
Retirement Savings Plan of Tyson Foods, Inc. is hereby amended deleting
paragraph (5) thereof in its entirety and substituting therefor the
following language:
"(5) At such time as a Participant attains the age of 59-1/2
years, the Participant may direct the Trustee to distribute up to the
entire amount of his Salary Deferral Contribution Account as of any
Accounting Date, including, with the Participant's spouse's consent,
amounts transferred to this Plan from the Arctic Plan. Distributions must
equal at least $500 each and are limited to two (2) distributions per Plan
Year. In the event a Participant elects to take such a distribution, he
shall continue to be eligible to participate in the Plan on the same basis
as any other Participant."
77
AMENDMENT NO. 4
TO THE
RETIREMENT SAVINGS PLAN OF TYSON FOODS, INC.
(As Restated Effective January 1, 1993)
(1) Effective April 1, 1995, Section 1.1(A)(36) is amended by
deleting that section in its entirety and substituting the following
language therefor:
"(36) 'Valuation Date' shall mean each day of a Plan Year."
(2) Effective April 1, 1995, Section 3.1(C) is amended by deleting
the first paragraph of that subsection and substituting therefor the
following language:
"(C) Right of Participant to Suspend or Change His Rate of Salary
Deferral Contributions: Except as set forth below, a Participant may
suspend or change his rate of Salary Deferral Contributions effective as
soon as administratively practicable as of the end of any subsequent
payroll period; however, except as provided in Section 3.1(E) below with
respect to certain required suspensions, a Participant who suspends his
Salary Deferral Contributions may not resume such contributions for a
period of six months following the effective date of such suspension. Any
resumption of Salary Deferral Contributions must be made by the Participant
in writing filed with the Committee prior to the effective date of the
resumption."
(3) Effective April 1, 1995, Section 8.3 is amended by deleting
subsection (A) and the first paragraph of subsection (B) and substituting
therefor the following language:
"(A) Less than $3,500. Disbursement of a Participant's Distribution
Account shall be made in one cash lump sum without his consent within
ninety (90) days of the Accounting Date coincident with or immediately
following his termination of employment if the vested amount of such
account does not exceed $3,500.
(B) Greater than $3,500. If the vested amount of a Participant's
Distribution Account exceeds $3,500 upon termination of employment,
disbursement of the Distribution Account shall be made, or begun if in
periodic payments, subject to the provisions of Section 8.11 below, if
applicable, as follows:
(1) With the written consent of the
Participant, within ninety (90) days of the Accounting Date coincident with
or immediately following the date such consent is received by Employer; or
(2) If the Participant does not consent to a
distribution under (1) above, within ninety (90) days of the Accounting
Date coincident with or immediately following the date:
(a) The Participant dies;
(b) The Participant incurs a Total and
Permanent Disability (as defined in Section 1.1(A)(31);
(c) The Participant reaches age 55, has at
least ten (10) years of service with Employer and elects to begin receiving
distributions on or after such date; or
(d) The Participant reaches his Normal
Retirement Date or Age (as defined below)."
78
(4) Effective April 1, 1996, Section 1.1(A)(24) is deleted in its
entirety and the following new language substituted therefor:
"(24) 'Plan Year' shall mean the fiscal year on which the
records of the Plan are kept as reported from time to time by the Plan
Administrator to the Internal Revenue Service. The Plan Year, unless
subsequently changed in accordance with the rules or regulations issued by
the Internal Revenue Service or the Department of Labor, shall be the same
as the calendar year."
(5) Effective April 1, 1996, Section 3.1 is amended by adding the
following new subsection (F):
"(F) Stock Match Account: Additionally, for Plan Years beginning on
or after April 1, 1996, the Employer will contribute to the Stock Match
Accounts for those Participants who are entitled to matching contributions
pursuant to the terms of Section 4.1(d) of the 'Tyson Foods, Inc. Employee
Stock Purchase Plan' cash in the amounts and at such times as required by
Section 4.1(d) of such plan. As soon as administratively feasible
following receipt of such cash matching contributions, the Trustees of this
Plan periodically shall purchase in the open market, through a fiduciary
delegated such responsibilities by the Administrative Committee of this
Plan, shares of Class A Common Stock of Tyson Foods,Inc. All assets held in
the Stock Match Account shall be subject to the same vesting and
distribution provisions that apply to Salary Deferral Contributions, as
more specifically set forth in Section 3.1(B) above. For purposes of
determining an individual's 'deferral percentage' under Section 3.1(E) for
any Plan Year beginning on or after April 1, 1996, contributions
allocated to his 'Stock Match Account' for such Plan Year shall be treated
as additional Salary Deferral Contributions. All cash dividends received
with respect to the shares of Class A Common Stock of Tyson Foods, Inc.
held in a Participant's Stock Match Account shall be used by the Trustee to
purchase additional shares of such stock as soon as administratively
feasible."
(6) Effective April 1, 1996, Section 6.1(B) is amended by
deleting that subsection in its entirety and substituting therefor the
following new language:
"(B) In addition to the separate accounts described in Section
6.1(A) above, the Committee shall cause to be established and maintained
for each applicable Participant until his Initial Distribution Date or
until such later date as of which distribution of the value in such account
is made:
(1) The Rollover Account described in Section 3.2
hereof which may include rollover accounts from any of the Merged Plans;
(2) Separate After-Tax Contribution Accounts for
any after-tax contribution accounts from any of the Merged Plans; and
(3) A Stock Match Account described in Section
3.1(F) above (and such account shall be established and maintained
separately notwithstanding the language in Section 6.1(A) above which
provides that Salary Deferral Contribution Accounts shall include other
Employer contributions which the Employer may have elected to treat as
Salary Deferral Contributions). The additional Accounts created pursuant
to this Section 6.1(B) at all times shall be 100% vested and shall consist
of such subaccounts as are required to reflect a Participant's interest
in the various Investment Funds in accordance with the Participant's
directions as specified in Section 5 hereof."
(7) Effective April 1, 1996, Section 7.1 is amended by adding the
following new sentence at the end of subsection (C) thereof, to-wit:
"Also, to the extent that a Participant's Stock Match Account
includes shares of Class A Common Stock of Tyson Foods, Inc. on any
79
Valuation Date, the value of such shares shall be determined based on the
fair market value of that stock as of such Valuation Date."
(8) Effective April 1, 1996, Section 8.4 is amended by changing
the designation for existing subsection (D) to (E) and by adding a new
subsection (D) to provide as follows:
"(D) Notwithstanding anything in this Section 8.4 to the contrary,
all distributions of assets allocated to a Participant's Stock Match
Account shall be paid in one cash lump sum, unless the Participant elects,
in the manner and at such times as provided by the Committee for this
purpose, to receive any of the shares of Class A Common Stock of Tyson
Foods, Inc. in kind."
80
AMENDMENT NO. 5
TO THE
RETIREMENT SAVINGS PLAN OF TYSON FOODS, INC.
(1) Effective April 1, 1996, Section 1.1(37) is amended by adding
the following sentence immediately after the fourth sentence of that
subsection, to-wit:
"For purposes of the immediately preceding sentence, Culinary
Foods, Inc. shall include its corporate predecessor, also known as Culinary
Foods, Inc."
(2) Effective April 1, 1996, Section 8.4(D) of the Plan [as added
by Amendment No. 4] is amended by deleting the language of that subsection
in its entirety and substituting therefor the following new language:
"D. Notwithstanding anything in this Section 8.4 to the contrary,
all distributions of assets allocated to a Participant's Stock Match
Account shall be made in one lump sum and, to the extent that the assets in
such account consist of shares of Class A Common Stock of Tyson Foods,
Inc., such shares shall be distributed in kind."
(3) Effective April 1, 1996, Section 8 of the Plan is amended by
adding new Section 8.12, as follows:
"8.12 LIMITATIONS ON BENEFITS AND DISTRIBUTIONS
All rights and benefits, including elections, provided to a
Participant in this Plan shall be subject to the rights afforded to any
'alternate payee' under a 'qualified domestic relations order' ('QDRO') as
those terms are defined in Code 414(p). Notwithstanding the provisions of
Sections 8.2, 8.3 and 8.4 above, if a QDRO provides for payment from the
Trust of part or all of Participant's Accounts to such 'alternate payee'
prior to a time when such benefits otherwise would be distributable under
the Plan and prior to the Participant's 'earliest retirement age' as
defined in Code 414(p)(4)(B), the payment shall be made s directed by the
QDRO if the amount does not exceed $3,500; if the payment amount exceeds
$3,500, then it shall be made as directed by the QDRO only with the prior
written consent of the 'alternate payee'."
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