PROFIT SHARING PLAN AND TRUST
OF
TYSON FOODS, INC.
(Restated Effective April 1, 1993)
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
1.1 Basic Compensation ....................... 2
1.2 Beneficiary .............................. 4
1.3 Break in Service ......................... 5
1.4 Code ..................................... 5
1.5 Disability ............................... 5
1.6 Early Retirement Date .................... 5
1.7 Effective Date ........................... 5
1.8 Employee ................................. 5
1.9 Employer.................................. 5
1.10 Employment Commencement Date ............. 6
1.11 Entry Date ............................... 6
1.12 Highly Compensated Employee............... 6
1.13 Hour of Service .......................... 7
1.14 Leave of Absence and Termination of
Service ................................ 8
1.15 Maternity or Paternity Absences .......... 9
1.16 Member ................................... 10
1.17 Name of Plan ............................. 10
1.18 Normal Retirement Age .................... 10
1.19 Plan ..................................... 10
1.20 Rollover Contribution .................... 10
1.21 Taxable Year, Fiscal Year, Plan Year
and Limitation Year .................... 11
1.22 Trust .................................... 11
1.23 Trust Fund ............................... 11
1.24 Years of Service ......................... 11
ARTICLE II ELIGIBILITY FOR MEMBERSHIP
2.1 Requirements for Participation............ 13
2.2 Effect of Break in Service on Eligibility. 13
2.3 Designation of Beneficiary................ 14
ARTICLE III CONTRIBUTIONS BY EMPLOYER
3.1 Discretionary Contribution of Employer.... 15
3.2 Time of Payment of Contribution
by Employer............................... 15
3.3 Adjustment of Erroneous Contribution....... 15
ARTICLE IV ALLOCATION OF TRUST FUND AMONG MEMBERS
4.1 Accounts of Members........................ 16
4.2 Valuation of Fund and Allocation of
Profits or Losses of Trust Fund.......... 16
4.3 Allocation of Forfeitures from
Employer Contribution Accounts........... 17
4.4 Allocation of Employer Contribution........ 17
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4.5 Special Accounting Date..................... 17
4.6 Basis of Valuation.......................... 18
4.7 Limit on Contributions...................... 18
4.8 Limited Allocation of Forfeitures........... 20
ARTICLE V VESTING
5.1 Vesting of Employer Contribution
Account .................................. 21
5.2 Vesting on Death, Disability or Normal
Retirement................................ 21
5.3 Vesting if Plan Terminated or Employer
Contributions Discontinued................ 21
5.4 Rollover Contribution Account .............. 21
5.5 Effect of Break in Service on Vesting....... 22
5.6 Disposition of Forfeited Amounts............ 22
5.7 Change in Vesting Schedule.................. 23
ARTICLE VI DISTRIBUTIONS
6.1 Initial Distribution Date................... 24
6.2 Establishment of Distribution Account....... 24
6.3 Date of Distribution ....................... 24
6.4 Methods of Distribution..................... 25
6.5 Deferred Retirement......................... 26
6.6 Cash-Out Distributions...................... 26
6.7 Payment of Benefits Upon Death
of Member................................. 27
6.8 Spousal Consent............................. 27
6.9 Death Before Commencement of
Benefits.................................. 27
6.10 Benefits Payable to Minors and
Incompetents.............................. 28
6.11 Eligible Rollover Distributions............. 29
6.12 Notification of Mailing Address ............ 30
6.13 Lost Payee ................................. 31
ARTICLE VII TRUSTEE
7.1 Title to Trust Assets....................... 32
7.2 Investment of Trust Funds .................. 32
7.3 Investment Manager.......................... 32
7.4 Records of Trustee.......................... 33
7.5 Powers of Trustee........................... 33
7.6 Liability of Trustee........................ 33
7.7 Reports by Trustee.......................... 34
7.8 Replacement of Trustee...................... 34
7.9 Limitation on Investment in Employee
Securities and Real Property ............. 34
ARTICLE VIII ADMINISTRATION
8.1 Fiduciary................................... 35
8.2 Powers and Duties......................... 35
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8.3 Records and Reports........................ 36
8.4 Claims Procedure........................... 36
8.5 Indemnification............................ 36
ARTICLE IX AMENDMENT AND TERMINATION OF PLAN
9.1 Amendment of Plan........................... 38
9.2 Suspension of Contributions by
Employer................................. 38
9.3 Termination of Plan......................... 39
9.4 Termination of Trust........................ 39
9.5 Merger, Consolidation or Transfer
of Assets................................. 39
ARTICLE X MISCELLANEOUS PROVISIONS
10.1 Rights of or to Employment.................. 40
10.2 Benefits Payable Solely from Trust
Fund...................................... 40
10.3 Affiliated Companies........................ 40
10.4 Restrictions on Transfer and Claims
of Creditors.............................. 40
10.5 No Interference by Members in
Administration of Trust................... 41
10.6 Applicable Law.............................. 41
10.7 Titles to Articles and Paragraphs........... 41
10.8 Gender....................................... 41
ARTICLE XI TOP HEAVY PROVISIONS
11.1 Determination Date.......................... 42
11.2 Key Employee................................ 42
11.3 Non-Key Employee............................ 43
11.4 Top Heavy Plan.............................. 43
11.5 Aggregated Plans............................ 44
11.6 Aggregation Group........................... 44
11.7 Top Heavy Group............................. 44
11.8 Distributions During Previous
Five Years................................ 45
11.9 Rollover Contributions...................... 45
11.10 Change of Status............................ 45
11.11 Vesting..................................... 45
11.12 Minimum Benefits........................... 46
11.13 Change in Vesting Schedules................ 46
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PROFIT SHARING PLAN AND TRUST
OF
TYSON FOODS, INC.
TYSON FOODS, INC., ("Employer"), a Delaware corporation, entered into
an indenture as of October 1, 1976, to establish the Profit Sharing Plan
and Trust of Tyson Foods, Inc. The Plan so established was continued and
amended on April 1, 1993, and restated in its entirety, as set forth
below, to incorporate all amendments made through April 1, 1993.
ARTICLE I
Definitions
The following definitions shall be used in this Plan and Trust unless
the context of the Plan and Trust clearly indicates another meaning:
1.1 Basic Compensation. "Basic Compensation" means an employee's
wages, salaries, fees for professional services, and other amounts
received (without regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of employment with the
Employer maintaining the plan to the extent that the amounts are
includable in gross income (including, but not limited to, commissions
paid salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances under a
nonaccountable plan). Any amounts that would have been includable in the
employee's Basic Compensation as described above if they had not received
special tax treatment because they were deferred by the employee through
a salary reduction contribution shall be added to the amount described
above and included in the employee's Basic Compensation for purposes of
the Plan. However, Basic Compensation shall not include the following:
(a) Other Employer contributions to a plan of deferred compensation
which are not includable in the employee's gross income for a taxable
year in which contributed; or any distributions from a plan of deferred
compensation;
(b) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the employee
either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
(d) Other amounts which receive special tax benefits, such as
premiums for group-term life insurance (but only to the extent that the
premiums are not includable in gross income).
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
annually 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
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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 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 Highly Compensated
Employees who are 5% owners or one of the ten highest paid Highly
Compensated Employees, such 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.
1.2 Beneficiary. "Beneficiary" means such person or persons or
legal entity as may be designated by a Member to receive benefits
hereunder after his death, or the personal or legal representative of the
Member as hereinafter provided in Section 2.3.
1.3 Break In Service. A "Break in Service" shall mean the failure
of an employee to complete more than 500 hours of service during a Plan
Year.
1.4 Code. "Code" means the Internal Revenue Code of 1986 as amended
from time to time.
1.5 Disability. "Disability" means the total incapacity of a Member
when so declared by the Employer in its judgment and discretion,
supported by the written opinion of at least two disinterested
physicians, after the expiration of at least thirty (30) days from the
date of the inception of such incapacity.
1.6 Early Retirement Date. "Early retirement date" shall mean the
date on which a Member or former Member has completed fifteen (15) years
of service and has attained the age of fifty-five (55).
1.7 Effective Date. The original effective date of the Plan was
October 1, 1976. The Plan has been restated effective April 1, 1993, to
reflect all amendments thereto, which, except as provided below, were
effective as of April 1, 1993. However, Section 1.8 was amended
effective April 1, 1988; and Sections 1.1, 1.12, 2.1, 4.4, 5.1, 5.7, 6.1,
6.3, 6.4, 11.2(A) [last paragraph only] and 11.12 were amended effective
April 1, 1989.
1.8 Employee. "Employee" means any person employed by Employer but
does not include leased employees within the meaning of 414(n) and 414(o)
of the Code.
1.9 Employer. "Employer" means Tyson Foods, Inc., or any
corporation
into which it may be merged or consolidated, or any corporation that may
hereafter accept and adopt the terms of this Indenture with approval of
the Board of Directors of Tyson Foods, Inc. For determining an
86
employee's length of service for purposes of determining eligibility,
vesting and contributions, Employer also includes any corporation which
is a member of a controlled group of corporations (as defined in 414(b)
of the Code) and all trades or businesses (whether or not incorporated)
which are under common control (as defined in 414(c) of the Code).
Provided, however, that service with an incorporated or unincorporated
employer which has not expressly adopted this Plan shall not give
employees of such employers the right to share in any contributions made
by employers which expressly have adopted this Plan.
1.10 Employment Commencement Date. "Employment Commencement Date"
means the first date on which an employee completes an "hour 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."
1.11 Entry Date. "Entry Date" shall mean April 1 and October 1 of
each year.
1.12 Highly Compensated Employee. "Highly Compensated Employee"
means any employee who, during the Determination Year or the Look-Back
Year --
(A) was at any time a 5-percent owner,
(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 Code section
415(b)(1)(A) 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 Code 415(d). 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 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 Compensated 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).
"Non-Highly Compensated Employee" means an employee who is not a
Highly Compensated Employee.
1.13 Hour of Service. An "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
87
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 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.
1.14 Leave of Absence and Termination of Service. The Employer,
under a uniform policy applied without discrimination, may grant a Leave
of Absence without pay to any employee because of (a) service in any of
the Armed Forces of the United States or other Government service, (b)
temporary incapacity, or (c) a temporary lay-off by the Employer. To
determine vested percentages and whether a break in service has occurred
(but not to determine entitlement to share in contributions and
forfeitures for the year), an employee will be credited with hours of
service during a Leave of Absence as if he had been actively employed and
had performed his customary duties, provided he returns to work at or
before the end of the Leave of Absence or when so requested by the
Employer after being temporarily laid off by the Employer; otherwise his
service will be considered terminated as of the date on which his leave
began. Any other absence from active employment not deemed a Leave of
Absence shall terminate an Employee's service as of the date the Employer
considers the Employee to have been dropped from its employment rolls.
1.15 Maternity or Paternity Absences. 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.
The total number of hours treated as Hours of Service under this
section shall not exceed 501 hours. The Hours 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
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 of such absence.
1.16 Member. "Member" means any employee who has qualified for
participation as provided in Article II of the Plan.
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1.17 Name of Plan. The name of the Plan shall be the "Profit
Sharing Plan of Tyson Foods, Inc."
1.18 Normal Retirement Age. "Normal retirement age" shall mean the
65th birthday of a Member.
1.19 Plan. "Plan" means the profit sharing plan set forth in this
document and all subsequent amendments thereto which in the aggregate are
intended by the Employer to constitute a profit sharing plan for purposes
of the Code.
1.20 Rollover Contribution. "Rollover Contribution" means an amount
transferred to the Trust by or on behalf of an employee that qualifies as
an "Eligible Rollover Distribution" as described in 402(c)(4), 403(a)(4)
and 408(d)(3) of the Code. The Trustee shall accept such Rollover
Contributions from the employee or directly from another Eligible
Retirement Plan as defined in Code 402(c)(8). The rollover of all or any
part of an Eligible Rollover Distribution shall be in accordance with the
provisions of Code 402(c) and the regulations thereunder, and the
Employer may require the employee to furnish such evidence or information
it deems necessary to comply with said laws and regulations. However,
the Trustee 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 Members
may direct the Trustee to purchase under the terms of the Plan, if
applicable. In the event a Rollover Contribution is accepted on behalf
of a Member, an account called the "Rollover Account" shall be
established for such Member and administered pursuant to the terms of the
Plan as if such account (except for the provisions of Section 5.4 below)
were an Employer Contribution Account of the Member.
1.21 Taxable Year, Fiscal Year, Plan Year and Limitation Year.
"Taxable Year," "Fiscal Year," "Plan Year," or "Limitation Year" means
the annual accounting period ending on the last day of March of each
year, which Tyson Foods, Inc. has adopted for federal income tax
purposes.
1.22 Trust. "Trust" means the legal entity resulting from this
Agreement between the Employer and the Trustee by which the Trust Funds
shall be received, held, invested and distributed to or for the benefit
of Members or Beneficiaries hereunder.
1.23 Trust Fund. "Trust Fund" means all funds received hereunder by
the Trustee, together with all income, profits and increments thereon.
1.24 Years of Service. A "year of service" means each twelve
consecutive month period during which an employee has at least one
thousand (1,000) "hours of service". For determining an employee's
eligibility under the Plan, the "eligibility computation period" shall
begin on the "employment commencement date" (as defined in Section 1.10
above) 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 Member's employment commencement date. For
purposes of determining a Member's vested and nonforfeitable interest in
his Employer Contribution Account, the "vesting computation period" shall
be the Plan Year.
ARTICLE II
Eligibility for Membership
2.1 Requirements for Participation. Each employee shall become a
Member 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
89
an employee who (i) has attained the age of 21; (ii) for Plan Years
ending prior to April 1, 1993, is classified as an Executive,
professional, supervisory, technical or office clerical employee; (iii)
for Plan Years following March 1, 1993, is classified as a salaried
employee; (iv) has completed a Year of Service (as defined above);
provided, however, that any employee who is a Highly Compensated
Employee, or 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, shall be excluded.
2.2 Effect of Break in Service on Eligibility. In the event an
employee has a Break in Service (as defined above), the employee's 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 Member at the time of such Break in Service, then upon completion of
the new Year of Service, he will be treated as a Member retroactively
from his date of re-employment, but not for purposes of sharing in any
Employer contributions or forfeitures for any plan year ending prior to
the date he completes such new Year of Service.
2.3 Designation of Beneficiary. The provisions of this Plan shall
apply to all Members uniformly. Each employee on becoming a Member
shall:
(a) Agree in writing to be bound by the terms and conditions of this
Plan.
(b) Designate in writing one or more beneficiaries to receive his
benefits in the event of his death. If no such designation be made, or
if such beneficiary be deceased without a successor beneficiary being
designated in writing, then the death benefits shall be paid in a lump
sum to the surviving spouse of said Member, if any, otherwise to the
Member's personal representative or estate of the deceased Member.
Should a beneficiary of a deceased Member die after he has started
receiving payment under the Plan and if there is no living successor
beneficiary named by the deceased Member, then the remaining benefits
shall be paid in a lump sum to the surviving spouse of said beneficiary,
if any, otherwise to the personal representative or estate of the
beneficiary receiving payment at the time of his death. Each Member
shall be entitled to change his designated beneficiaries from time to
time by filing with the Trustee a new Designation of Beneficiary Form,
and each change so made shall revoke all prior designations by the
Member.
ARTICLE III
Contributions by Employer
3.1 Discretionary Contribution of Employer. For the first taxable
year ending after the effective date, and for each succeeding taxable
year, the Employer (in its sole discretion) shall contribute to the
Trustee such definite amount as the Board of Directors shall determine;
provided that the Employer's total contribution to the Trust Fund for
such year shall not exceed fifteen percent (15%) of the total Basic
Compensation for the taxable year of all employees who are entitled to
share in the Employer's contribution for such taxable year and shall be
subject to the limitations in Section 4.7.
3.2 Time of Payment of Contribution by Employer. The full amount of
the Employer's contribution for any taxable year shall be paid not later
than the time prescribed by law for filing the Federal income tax return
of Employer for such taxable year.
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3.3 Adjustment of Erroneous Contribution. If for a taxable year
there is an underpayment or overpayment of the contribution of the
Employer, the following acts shall be performed, to-wit:
(a) If an underpayment is made, the deficiency shall be paid in the
taxable year in which it is disclosed, and for the purpose of
allocation shall be added to the contribution made in such taxable year
of disclosure and allocated in the same manner and among the same Members
as though it were part of the contribution for such taxable year of
disclosure.
(b) If an overpayment is made, the Employer shall not be entitled to
recoup any part of such excess, and the same shall remain to the credit
of the accounts of the Members to whom it was allocated for the taxable
year of contribution, but the contribution of the Employer for the year
during which the overpayment is disclosed may, at the election of the
Board of Directors of the Employer, be reduced by the amount of the
overpayment for the prior year.
ARTICLE IV
Allocation of Trust Fund Among Members
4.1 Accounts of Members. The Trustee shall establish and maintain
for each Member until his "initial distribution date" (defined in Section
6.1) separate accounts, to be called the "Employer Contribution Account"
and one or more "Rollover Contribution Accounts", and each such account
shall be credited or debited to the extent required by the following
sections. As of the Member's initial distribution date, an account
called the "Distribution Account" shall be set up for the Member until
his benefits have been fully paid.
4.2 Valuation of Fund and Allocation of Profits or
Losses of Trust Fund. As of the last day of each taxable year, the total
sum of all accounts (Employer Contribution Accounts, Rollover
Contribution Accounts and Distribution Accounts) shall be compared with
the fair market value of the Trust Fund as determined by the Trustee,
excluding from such appraised value an amount equal to the sum of (a) the
aggregate amounts forfeited during the taxable year in question and (b)
the Employer's contribution for such year. The difference between the
total of all accounts and the adjudged fair market value of the Trust
Fund shall be allocated and credited to the Employer Contribution
Account, Rollover Contribution Account, or Distribution Account of each
Member, in the same proportion that the total of each separate account of
each Member prior to the apportionment bears to the total of all accounts
of all Members or former Members prior to the apportionment. (The term
"amount forfeited" means that portion of a terminated Member's account to
which he is not entitled by reason of the provisions of Article V.)
4.3 Allocation of Forfeitures from Employer Contribution Accounts.
After making the adjustment of Members' accounts required by Section 4.2,
the aggregate amount forfeited during the taxable year in question from
Employer Contribution Accounts shall be combined with the Employer's
Contribution for such taxable year and shall be allocated and credited in
the manner provided under Section 4.4.
4.4 Allocation of Employer Contribution. The Employer's
contribution for each taxable year shall be allocated and credited to the
Employer Contribution Account (or Distribution Account) of each Active
Member who both (i) is employed by Employer at the end of the Plan Year,
and (ii) has completed one thousand (1,000) hours of service in the Plan
Year, in the same proportion that such Member's Basic Compensation for
91
the taxable year while a Member under the Plan bears to the total Basic
Compensation of all such Members for such year while Members under the
Plan. Active Member means a Member who meets the definition of "Eligible
Employee" in Section 2.1 as of the end of the Plan Year in question.
4.5 Special Accounting Date. If the Trustee is of the opinion that a
substantial change in the value of the Trust Fund has occurred since the
last prior accounting date, the Trustee, if it deems it advisable and
prior to the next regular accounting date, may establish a special
accounting date and adjust the Members' accounts in accordance with the
method described in Section 4.2 to make the total net credit balance in
the accounts of all Members equal to the then market value of the assets
of the Trust Fund (excluding from such market value an amount equal to
the sum of the aggregate amounts forfeited and any Employer contributions
since the last prior accounting date). All distributions which are to be
made as of or after such special accounting date but prior to the next
accounting date shall be made as if the net credit balance in all
Distribution Accounts had actually been credited or debited to reflect
the required adjustment described in Section 4.2.
4.6 Basis of Valuation. The value of the Trust Fund as of the last
day of each taxable year or any other special accounting date established
by the Trustee shall be determined on the basis of the fair market value
of the assets of the Trust Fund as appraised by the Trustee, less any
accrued expenses to be paid from the Trust Fund.
4.7 Limit on Contributions. Notwithstanding any other provisions of
this or any other qualified defined contribution plan of Employer with
respect to any Member, no Employer or Employee contributions or
allocations with respect to a Member's Account shall be made to the
extent it would cause the annual addition to a Member's account to exceed
the lesser of:
(a) Twenty-five percent (25%) of the Member's compensation; or (b)
$30,000 or, if greater, 1/4 of the dollar limitation in effect under
415(b)(1)(A) of the Code as adjusted by the Secretary of the Treasury
pursuant to his duties under 415(d) of the Code. "Annual addition" means
the sum for any taxable year of the following amounts under this and any
other defined contribution plan maintained by Employer and qualified
under 401 of the Internal Revenue Code, as amended:
(a) Employer contributions;
(b) Employee contributions; and
(c) Forfeitures.
For purposes of this Section 4.7, "compensation" shall have the same
meaning as "Basic Compensation" defined above in Section 1.1 except that
there shall be excluded any amounts that would have been includable in
the employee's gross income if they had not received special tax
treatment because they were deferred by the employee through salary
reduction contributions. Employee contributions, for purposes of the
preceding sentence, do not include "rollover contributions" defined in
Section 1.20.
The Thirty Thousand Dollars ($30,000) limitation referred to in this
section shall be increased automatically pursuant to any regulation,
ruling or announcement promulgated by the Secretary of the Treasury under
Code 415(d)(1) to reflect increases in the cost of living. Any such
increase shall be effective for the limitation year which ends with or
within the calendar year for which such increase is effective.
If a Member's "annual addition" would exceed the limits stated in
this Section notwithstanding these provisions, then:
(a) First, his nondeductible voluntary employee contributions, to
the extent that the return would reduce the amount by which the annual
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addition exceeds such limits, shall be returned to the Member;
(b) Any remaining part of a Member's annual addition which would
exceed such limits shall be reallocated among the accounts of other
Members in the same proportion as each Member's compensation bears to the
total compensation of all other Members whose annual additions, including
such reallocations, do not exceed such limits; and
(c) To the extent that such excess annual additions cannot be
allocated further under subparagraph (b) above due to such limitations,
then such excess amounts shall be allocated to a suspense account and
held therein until the next succeeding date on which allocations are made
under this Plan at which time they shall be allocated and reallocated in
accordance with subsection (b) before any contributions which would
constitute annual additions may be made. In the event of termination of
the Plan, the suspense account shall revert to the Employer to the extent
it may not then be allocated to any Member's account. (If a suspense
account is in existence at any time during the Limitation Year pursuant
to this section, it will not participate in the allocation of the Trust's
investment gains and losses for such year.)
4.8 Limited Allocation of Forfeitures. In allocating forfeitures as
set forth in Section 4.3 of this Article, amounts forfeited by a Member
shall be allocated only to the account of the remaining Members of the
Plan employed by the employer of the forfeiting Member.
ARTICLE V
Vesting
5.1 Vesting of Employer Contribution Account. Except as hereinafter
provided, the amount credited to the Employer Contribution Account of a
Member shall become vested and nonforfeitable based upon his number of
Years of Service (as defined in Section 1.24 above) in the percentage
indicated as follows:
Years of Service Percentage Vested
Less than 3 years 0%
3 years 20%
4 years 40%
5 years 60%
6 years 80%
7 years 100%
5.2 Vesting on Death, Disability or Normal Retirement.
Upon a Member's death, severance of employment due to disability (defined
in Section 1.5 above), or attainment of his Normal Retirement Age, the
full amount of his Employer Contribution Account shall become vested and
nonforfeitable.
5.3 Vesting if Plan Terminated or Employer Contributions
Discontinued. Notwithstanding any other provisions of this Article V, if
the Plan is terminated, or Employer contributions to the Trust Fund are
permanently discontinued, the full amount of each Member's Employer
Contribution Account shall become fully vested and nonforfeitable. If
the Plan is partially terminated, then the accounts of those Members as
to whom partial termination occurred shall be fully vested and
nonforfeitable.
5.4 Rollover Contribution Account. Amounts credited to a Rollover
Contribution Account shall always be 100% vested and nonforfeitable.
5.5 Effect of Break in Service on Vesting. A former Member 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
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Service after such break. A former Member 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
Member'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 Member'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.
5.6 Disposition of Forfeited Amounts. If a Member incurs five
consecutive one-year Breaks in Service or if a Member receives a Cash-Out
Distribution pursuant to Section 6.3, then, in either event, that part,
if any, of his Employer Contribution Account which is not vested in
accordance with the foregoing provisions of this Article V shall be
forfeited and shall be reapportioned as provided in Sections 4.3. Any
former Member receiving a Cash-Out Distribution as defined in Section 6.3
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 6.3 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. 5.7 Change in Vesting Schedule. As to
each employee who had no less than 3 Years of Service on the date a 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.
ARTICLE VI
Distributions
6.1 Initial Distribution Date. The initial distribution date of a
Member shall be the earlier of:
(a) The date of termination of his employment; or
(b) The end of his taxable year in which he attains age 70.
6.2 Establishment of Distribution Account. On a Member's initial
distribution date, the Trustee shall determine the amount of each
separate account of the Member to which such Member may be entitled on
such date in accordance with the vesting provisions of Article V, and
shall credit such amount or amounts to a new account for the former
Member to be called the "Distribution Account." The balance of the
Member's Employer Contribution Account (representing his forfeitable
amount) shall continue to be held herein, until forfeited in accordance
with Section 5.6. The net credit balance in each Distribution Account
shall be subject on each accounting date to the adjustments specified in
Section 4.2.
6.3 Date of Distribution.
(A) Not Greater than $3,500. Disbursement of a Member's
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Distribution Account shall be made without his consent within the sixty
(60) day period following the close of the Plan Year in which the Member
terminates employment if the vested amount of his account does not exceed
$3,500.
(B) Greater than $3,500. If the vested amount of a Member'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 6.11 below, if
applicable, as follows:
(1) If the Member consents by the end of the Plan Year in which
termination occurs, within the sixty (60) day period following the close
of such Plan Year; or
(2) If the Member does not consent within the period described
in (1) above, within the sixty (60) day period following the close of the
earliest Plan Year in which:
(a) the Member dies;
(b) the Member incurs a Disability (as defined in
Section 1.5 above);
(c) the Member reaches his Early Retirement Date and
elects to begin receiving distributions on or after such date; or
(d) the Member reaches his Normal Retirement Age (as
defined in Section 1.18 above).
(C) Pre-Retirement Distributions. A Member may elect to begin
distributions of any amount of his account once the Member attains his
Normal Retirement Age, even though the Member does not terminate his
employment with the Employer.
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 Member attains age 70r.
6.4 Methods of Distribution. All distributions made to a Member or
his or her beneficiaries shall be made by the Trustee in one of the three
following methods:
(a) Lump Sum. By payment in a lump sum.
(b) Installments. By payment equal in installments over a
period certain which does not extend beyond the lesser of twenty (20)
years or the life expectancy of the Member or the joint life expectancies
of such Member and the Member's beneficiaries determined as of the date
that payment of benefits commences, subject to the following
requirements:
1. Fifty Percent (50%) Present Value Test. The
present value of payments to be made to the Member must be more than
fifty percent (50%) of the present value of the total payments to be made
to the Member and the Member's beneficiaries, all as determined as of the
later of such Member's Normal Retirement Age or the Member's termination
of employment; and
2. 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 Member or his or her beneficiaries
must be equal to the immediate lump sum
otherwise distributable to the Member had a lump sum settlement been
made.
(c) Combination. By any combination of (a) and (b).
The choice of the method of distribution to the Member or his
beneficiaries shall be made by the Member.
Notwithstanding any other Plan provision to the contrary, all Plan
distributions shall comply with the requirements of 401(a)(9) of the Code
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and the regulations thereunder, including 1.401(a)(9)-2.
6.5 Deferred Retirement. If such Member elects to continue in the
employment of the Employer beyond his Early Retirement Date or Normal
Retirement Age, he shall continue to be treated in all respects as a
Member under the Plan until his actual retirement.
6.6 Cash-Out Distributions. If a Member terminates service with the
Employer and receives an immediate distribution of the vested portion of
his accounts under the Plan pursuant to Section 6.3 (a "Cash-Out
distribution), the nonvested portion of the Member's accounts under the
Plan immediately will be forfeited and reallocated to other Members'
accounts in accordance with Section 4.3. If the Member 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 Member incurs five (5) consecutive one-year Breaks in Service.
6.7 Payment of Benefits Upon Death of Member. Upon the death of a
Member the portion of the Member's account balance, if any, not yet paid
to the Member shall be paid to the Member's surviving spouse; provided,
however, that if the Member is not survived by a spouse or if such spouse
consents to an election out of such payment as set forth in paragraph
6.8, such benefits shall be paid to the Member's designated beneficiary.
6.8 Spousal Consent. Any election by a Member to pay benefits upon
the Member's death to a beneficiary other than the Member's spouse under
paragraph 6.7 shall not be effective unless (i) the spouse of the Member
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.
6.9 Death Before Commencement of Benefits. If a Member dies before
the distribution of his interest has commenced, the Member'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 Member's death.
Notwithstanding the foregoing, if the Member's designated beneficiary is
his or her spouse, such payments need not begin earlier than the date on
which the Member would have attained age 70r years. If the spouse dies
before distributions to such spouse begin, this section shall be applied
as if the surviving spouse was the Member. If distributions have
commenced prior to the Member's death, the remaining portion of the
Member's account shall be distributed to such Member's beneficiary at
least as rapidly as under the method of distribution being used at the
time of the Member's death.
6.10 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
Employer 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 Employer may in the
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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 Employer will, in each case, be final and
binding upon all persons and the Employer 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 Employer
shall operate as a complete discharge of the obligation of the Trustee
and of the Employer.
6.11 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
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.
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6.12 Notification of Mailing Address. (A) Each Member and other
person entitled to benefits hereunder shall file with the Committee
(described in Section 8.1) 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
Member 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 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.
6.13 Lost Payee. In the event the Administrator is unable, within
five years after payment of a benefit is due to a Member or beneficiary,
to make such payment because it cannot ascertain the whereabouts of the
Member or the identity and whereabouts of his beneficiary or personal
representative by mailing to the last known address shown on the
Administrator's records, and neither the Member, his beneficiary or
personal representative has made written claim therefore before the
expiration of such five years, then, and in such case, the Administrator
shall direct that such amount shall be forfeited and reapportioned as
provided in Section 4.3; provided, however, that such amount shall be
reinstated if and in the event the said Member or his beneficiary or
personal representative shall make a valid claim therefore upon
presentation of proper identification.
ARTICLE VII
Trustee
7.1 Title to Trust Assets. The Trustee is charged with the
custody, management and protection of the Trust Fund. Title to all of
the assets of the Trust shall vest in the Trustee (or its nominee) who
shall hold the same as a special Trust Fund to be administered and
distributed as provided in the Plan.
7.2 Investment of Trust Funds. The Trustee is authorized to invest
and reinvest the assets of the Trust in such real or personal property as
it may deem proper, including but not limited to (i) common stocks and
any common trust fund operated by the Trustee, and (ii) qualifying
employer securities and qualifying employer real property (as defined in
407 of the Employee Retirement Income Security Act of 1974 and as
permitted in 408(e) of such Act) so long as such investments are not
prohibited by and are in conformity with any applicable law or
regulations issued by the Internal Revenue Service in order continuously
to qualify the Trust Fund as a tax-free employee profit sharing trust and
so long as making of such investments does not constitute a prohibited
98
transaction as defined in 4975 of the Code. If a bank is appointed as
Trustee or co-Trustee of this Trust, such bank is authorized to invest
all or part of the assets of the Trust in deposits of such bank bearing a
reasonable rate of interest.
7.3 Investment Manager. The Plan Administrator or the Trustee shall
each have the right, but shall be under no obligation, to appoint an
Investment Manager or Managers to direct the investment of all or any
portion of the assets of the Trust Fund. The Investment Manager or
Managers shall be (a) registered as an investment advisor under the
Investment Advisors Act of 1940, (b) a bank as defined in that Act, or
(c) an insurance company qualified to manage, acquire or dispose of
assets of the Plan under the laws of more than one state. Upon
appointment, the Investment Manager shall certify and acknowledge to the
Trustee receipt of a copy of the Plan and Trust, that the Investment
Manager is a fiduciary with respect to such Plan and Trust, and that the
Investment Manager has assumed the duties and responsibilities conferred
by the Trustee or Plan Administrator.
7.4 Records of Trustee. The Trustee shall keep such records and
books as are necessary and appropriate to the administration of the Trust
Fund created by the Plan. The Trustee is authorized to incur any
expenses it deems appropriate and necessary in the preservation of assets
of the Trust or the collection of income, which expenses shall be paid
out of the Trust assets unless the Employer elects to pay any portion or
all or said expenses.
7.5 Powers of Trustee. The Trustee shall have such powers,
authority and discretion as it may need to administer the Trust Fund and
as are authorized by the laws of Arkansas, expressly including all of the
powers applicable to a trustee which are set forth in Section 3 of Act 153
of the 1961 Acts of the General Assembly of Arkansas, which section is
incorporated herein by reference.
7.6 Liability of Trustee. The Trustee shall be under no duty to
determine whether the contributions made by the Employer or any rules or
instructions issued by the Employer comply with the terms of the Plan,
and the Trustee shall be fully protected in acting in good faith on any
information or instructions received from the Employer. The Trustee
shall obtain such bond as may be required and cannot be waived by the
parties to this Agreement under federal or state laws and the premium for
the bond may be borne by the Employer if it so elects.
7.7 Reports by Trustee. The Trustee shall furnish to the Employer
annual financial statements of the operation of the Trust Fund. The
Trustee shall also furnish to each Member of the Plan an annual statement
of the amounts credited to such Member's accounts.
7.8 Replacement of Trustee. Any Trustee may resign or may be
removed as Trustee by action of the Board of Directors of the Employer.
Any Successor Trustee or Trustees shall be appointed by the Board of
Directors of the Employer and shall have all of the powers provided
herein for the original Trustee.
7.9 Limitation on Investment in Employer Securities and Real
Property. Notwithstanding Section 7.2 above, in no case shall the
Trustee invest more than 85% of the Trust assets in such qualifying
Employer securities and qualifying Employer real property (defined in
Section 7.2).
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ARTICLE VIII
Administration
8.1 Fiduciary. The Board of Directors of Tyson Foods, Inc. shall
appoint a committee to be known as the "Administrative Committee" (the
"Committee") to administer the Plan. The Committee will serve as the
named fiduciary of the Plan. The Committee shall consist of officers or
employees of the Employer or other individuals or entities, all of whom
shall serve at the pleasure of the Board and without compensation. A
member of the Committee may resign at any time upon delivery of a written
resignation of the Board. Vacancies created by resignations, death or
other cause may be filled by the Board or the assigned responsibilities
may be reabsorbed or redelegated by the Board. Any person or entity may
serve in more than one fiduciary capacity as respects the Plan.
8.2 Powers and Duties. The Committee shall administer the Plan in
accordance with its terms and shall have all powers necessary to carry
out its terms. The Committee shall act for and on behalf of the Employer
in taking any action or furnishing any information required of the
Employer with respect to the Plan. All interpretations of the Plan, and
questions concerning its administration and application, shall be
determined by the Committee, and such determinations shall be binding on
all persons except as otherwise expressly provided herein. The Committee
may employ one or more persons to render advice with regard to any
responsibility under the Plan. In the event the members of the Committee
are unable to act for any reason, any actions required of the Committee
shall be performed by the Board. A Committee member who is a Member
under the Plan will not vote or act on any matter relating only to
himself. The Committee shall have the power to delegate specific
fiduciary responsibilities (other than those of the Trustee with respect
to controlling assets of the Plan) by written action. Such delegations
may be officers or employees of the Employer or to other individuals or
entities, all of whom shall serve at the pleasure of the Employer and, if
full-time employees of the Employer, without compensation. Any person or
entity may serve in more than one fiduciary capacity as respects the
Plan.
8.3 Records and Reports. The Committee shall keep a record of all
their proceedings and actions, and other data as shall be necessary for
the proper administration of the Plan and meet the disclosure and
reporting requirements of the law.
8.4 Claims Procedure. If a claim for benefit made by a Member or
his beneficiary is denied, the Committee will give to the Member or
beneficiary written notice of the denial and the specific reasons
therefor. The notice shall be written in a manner calculated to be
understood by the Member or beneficiary. The Member and beneficiary
shall be given sixty (60) days after such notice to obtain by request to
the Committee member designated in the notice a full and fair review by
the Committee of the decision denying the claim.
8.5 Indemnification. The Employer shall indemnify each member of
the Committee and any officer, director, or employee of the Employer
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, cost of defense and attorneys fees, based upon or arising out
of any act or omission relating to or in connection with the Plan and
Trust Agreement, other than losses resulting from any such person's fraud
or willful misconduct. The indemnity provided herein will not be
available to the extent that it would deprive the person indemnified of
the benefit of any insurance payment otherwise available.
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ARTICLE IX
Amendment and Termination of Plan
9.1 Amendment of Plan. This Plan may be amended at any time and
from time to time by the Board of Directors of Employer. However, no
change may be made in the Plan which will vest in Employer, directly or
indirectly, any interest, ownership or control in any of the present or
subsequent funds set aside for Members pursuant to the Plan. No part of
the funds shall, by reason of any amendment or under any other
circumstances, be used for or diverted to purposes other than for the
exclusive benefit of Members and their beneficiaries or for
administration expenses of the Plan. Nor shall any amendment reduce any
then vested interest of a Member.
9.2 Suspension of Contributions by Employer. Employer has
established the Plan with the bona fide intention and expectation that
from year to year it will be able to and will deem it advisable to make
its contributions as herein provided. However, Employer realizes that
circumstances not now foreseen or circumstances beyond its control may
make it either impossible or inadvisable to continue to make its
contributions as herein provided. If Employer decides it is impossible
or inadvisable to make its contributions as herein provided, the Board of
Directors of Employer shall have the power to suspend Employer's
liability for contributions for a fixed or indeterminate period.
However, all other provisions of the Plan shall remain in force, other
than the provisions for contributions by the Employer during the period
its contributions are suspended.
9.3 Termination of Plan. Employer may at any time terminate this
Plan. In such event, after payment of all expenses and after
proportionate adjustment of Members' accounts to reflect such expenses,
fund profits or losses and reallocations to the date of termination, each
Member shall be entitled to receive all amounts then credited to his
separate accounts in the Trust Fund, said amounts to be paid by the
Trustee in accordance with Section 6.3.
9.4 Termination of Trust. When all assets of the Trust have been
distributed as herein provided, the Trust shall terminate and the Trustee
shall be discharged. Unless sooner terminated under the provisions of
this Indenture, the Trust shall terminate upon the expiration of such
period as may be provided by any applicable Rule Against Perpetuities
under Arkansas law.
9.5 Merger, Consolidation, or Transfer of Assets. This Plan and
Trust shall not be merged or consolidated with, nor shall any assets or
liabilities be transferred to, any other plan, unless the benefits
payable to each Member if the Plan was terminated immediately after such
action would be equal to or greater than the benefits to which such
Member would have been entitled if this Plan had been terminated
immediately before such action.
ARTICLE X
Miscellaneous Provisions
10.1 Rights of or to Employment. The adoption and maintenance of
the Plan shall not be deemed to constitute a contract between Employer and
any Employee, and shall not be deemed to be a consideration for, or an
inducement or condition of, the employment of any person. Nothing herein
contained shall be deemed to give to any employee the right to be
retained in the employ of Employer or to interfere with the right of
Employer to discharge any Employee at any time. Nor shall any provision
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of the Plan be deemed to give to Employer the right to require any
employee to remain in its employ; nor shall it interfere with any
Employee's right to terminate his employment at any time.
10.2 Benefits Payable Solely from Trust Fund. All benefits payable
under the Plan shall be paid or provided for solely from the Trust Fund,
and Employer assumes no liability or responsibility therefor.
10.3 Affiliated Companies. Any affiliated, associated or subsidiary
company of Employer may become a party to this Plan for the purpose of
including hereunder as Members the Employees of such affiliated,
associated or subsidiary company, but only at the time and in the manner
and upon the terms and conditions specified by the Board of Directors of
Employer.
10.4 Restrictions on Transfer and Claims of Creditors.
Subject to the exceptions set forth in 401(a)(13) and 414(p) of the Code,
the right to any Member or his beneficiary to any benefit or to any
payment hereunder or to any separate account, prior to actual
distribution to such Member, shall not be subject to alienation or
assignment by any Member, and shall not be subject to attachment,
execution, garnishment, sequestration or other legal, equitable or other
process.
10.5 No Interference by Members in Administration of Trust. Nothing
contained herein shall grant to any Member the right to question the
types of investments made by the Trustee of Trust Funds nor to interfere
in any manner with the Trustee's administration of the Trust. Neither
the Trustee nor the Employer shall be obligated to disclose to any Member
the compensation being paid to any other Member or to provide any Member
with financial statements or operational data of the Employer.
10.6 Applicable Law. All legal questions pertaining to the Plan
shall be determined in accordance with the laws of the State of Arkansas,
and all contributions made hereunder shall be deemed to have been made in
that State.
10.7 Titles to Articles and Paragraphs. The titles to articles and
paragraphs are included solely for convenience of reference, and if there
is any conflict between the titles and the text of this Plan the text
shall control.
10.8 Gender. The masculine gender shall include the feminine where
applicable, and the singular shall include the plural unless
thecontexclearly indicates otherwise.
ARTICLE XI - TOP HEAVY PROVISIONS
Definitions
For purposes of this Article, the following definitions shall apply: 11.1
Determination Date. "Determination Date" means, with respect to
any Plan Year -
(i) the last day of the preceding Plan Year, or
(ii) in the case of the first Plan Year of any plan, the last day
of such Plan Year.
11.2 (A) Key Employee. A Key Employee means an Employee, former
Employee or the beneficiary of either who, at any time during the Plan
Year or any of the 4 preceding Plan Years, is -
(i) an officer of Employer having an annual compensation greater
than 50% of the amount in effect under Code 415(b)(1)(A) for any Plan
Year,
(ii) one of the 10 Employees having annual compensation from
Employer of more than the limitation in effect under Code 415(c)(1)(A)
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and owning (or considered as owning within the meaning of Code 318) the
largest interests in Employer,
(iii) a 5-percent owner of Employer, or
(iv) a 1-percent owner of Employer having an annual compensation
from Employer of more than $150,000.
For purposes of clause (i), 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 (ii), if 2 Employees have the same
interest in Employer, the Employee having greater annual compensation
from Employer shall be treated as having a larger interest.
For purposes of this subparagraph (A), the term "compensation" has
the meaning given such term by 414(q)(7) of the Code.
(B) PERCENTAGE OWNERS.--
(i) 5-PERCENT OWNER.--For purposes of this paragraph, the term
"5-percent owner" means--
(I) if Employer is a corporation, any person who owns (or is
considered as owning within the meaning of Code 318) 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 Employer is not a corporation, any person who owns more
than 5 percent of the capital or profits interest in Employer.
(ii) 1-PERCENT OWNER.--For purposes of this paragraph, the term
"1-percent owner" means any person who would be described in clause (i)
if "1 percent" were substituted for "5 percent" each place it appears in
clause (i).
(iii) CONSTRUCTIVE OWNERSHIP RULES--For purposes of
subparagraphs (B)(i) and B(ii)--
(I) subparagraph (C) of Code 318(a)(2) shall be applied by
substituting "5 percent" for "50 percent," and
(II) in the case of any employer which is 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 Code 318 (as modified by
subclause (I)).
(C) AGGREGATION RULES DO NOT APPLY FOR PURPOSES OF DETERMINING
OWNERSHIP IN THE EMPLOYER.--The rules of subsections (b), (c) and (m) of
414 of the Code shall not apply for purposes of determining ownership in
the employer.
11.3 Non-Key Employee. The term "Non-Key Employee" means any
Employee who is not a Key Employee.
11.4 Top Heavy Plan. A plan shall be a top heavy plan if, as of the
Determination Date, the aggregate of the accounts of Key Employees under
the plan, exceeds 60% of the aggregate of the accounts of all Employees
under the plan. Notwithstanding the foregoing, a plan shall not be a top
heavy plan if it is part of an Aggregation Group and such Aggregation
Group is not a Top Heavy Group. For purposes of this section and Section
11.7, the account balance of an Employee as of the Determination Date
shall be the sum of (i) the account balance as of the most recent
valuation date occurring within a 12-month period ending on the
Determination Date, and (ii) the amount of any contributions actually
made after the valuation date but on or before the Determination Date.
11.5 Aggregated Plans. Each plan of an Employer required to be
included in an Aggregation Group shall be treated as a top heavy plan if
such group is a top heavy group.
11.6 AGGREGATION GROUP.
A. REQUIRED AGGREGATION GROUP means --
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(i) each plan of the Employer in which a Key Employee is a
participant, and
(ii) each other plans of Employer which enables any plan
described in subclause (i) to meet the requirements of 401(a)(4) or 410
of the Code, or
(iii) any other plan included by Employer if such group would
continue to meet the requirements of 401(a)(4) and 410 of the Code with
such plan being taken into account.
B. PERMISSIVE AGGREGATION GROUP means --
(i) each plan of the Employer that is required to be
aggregated, and
(ii) each other plan of the Employer that is not part of a
Required Aggregation Group but that satisfies the requirements of
401(a)(4) and 410 of the Code when considered together with the Required
Aggregation Group.
11.7 Top Heavy Group. The term "Top Heavy Group" means any
aggregation group if, as of the determination date, the sum of
(i) the present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such group, and
(ii) the aggregate of the accounts of Key Employees under all
defined contribution plans included in such group exceeds 60% of a
similar sum determined for all Employees.
11.8 Distributions During Previous Five Years. For purposes of
paragraph 11.4, the amount of the account of any Employee shall include
the aggregate distributions made with respect to such employee under the
Plan during the five year period ending on the Determination Date.
11.9 Rollover Contributions. Any rollover contribution, or similar
transfer, initiated by an Employee, shall not be taken into account with
respect to the Plan for purposes of determining whether such plan is a
top heavy plan or whether any aggregation group which includes such plan
is a top heavy group.
11.10 Change of Status. If any Employee changes status thereby
becoming classified as a Non-Key Employee with respect to any Plan Year,
the balance in the accounts of such Employee shall not be considered in
determining whether the Plan is a Top Heavy Plan for such Plan Year. In
addition, the account balance of any Employee who has not performed
services for Employer during the 5 year period ending on the Determination
Date shall also be disregarded.
PROVISIONS APPLICABLE DURING TOP HEAVY YEARS
For any year in which the Plan of Employer is considered a Top Heavy Plan,
the following shall apply.
11.11 Vesting. The vesting schedule applicable to employer
contributions during top heavy years shall be:
Years of Service Percentage Vested
2 20%
3 40%
4 60%
5 80%
6 or more 100%.
11.12 Minimum Benefits. During any year Employer's Plan is a Top
Heavy Plan, th minimum contribution made by Employer to the account of
each Active Member in the Plan who is a Non-Key Employee shall not be
less than the lesser of:
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(a) 3% of such Non-Key Employee's compensation, or
(b) the highest percentage of compensation contributed to the
account for any Key Employee for the year. "Compensation" for purposes of
this Section shall be as defined in Section 4.7 above. "Active Member"
shall be as defined in Section 4.4 above.
Notwithstanding the above, any Employer who maintains this Plan plus one
or more additional qualified employee benefit plans may choose to fund
any required minimum benefit through such other plan(s) but must notify
the Trustee of this Plan of such election.
To provide for the minimum allocation, the Employer contribution
shall be allocated as follows:
(a) An amount of the Employer Contribution equal to 3% of total
compensation (or the total Employer Contribution if less than 3%) shall
be allocated to the Employer Contribution Accounts of the Active Members
in proportion to each Active Member's compensation; and
(b) The balance, if any, of the Employer's Contribution shall be
allocated as set forth in Section 4.4 of the Plan.
A minimum allocation shall be provided to any Active Member who is
employed as of the last day of the Plan Year regardless of such member's
Hours of Service.
11.13 Change in Vesting Schedules. Any change in the vesting
schedule applicable to the Plan due to the Plan becoming a top heavy plan
or a non-top heavy plan shall be subject to the same restriction as set
forth in Section 5.7 of the Plan governing amendments in the vesting
schedule.
IN WITNESS WHEREOF, Tyson Foods, Inc. has caused this Indenture to be
executed by its duly authorized officer, and the Trustee, to indicate
acceptance of this Trust, has executed this Indenture, on this first day
of April, 1993.
TYSON FOODS, INC.
By:________________________________
EMPLOYER
ATTEST:
______________________________
TRUSTEES:
______________________________
______________________________
______________________________
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AMENDMENT NO. 1
TO THE
PROFIT SHARING PLAN AND TRUST OF TYSON FOODS, INC.
(As Restated Effective April 1, 1993)
Effective April 1, 1995, the Plan is amended as follows:
(1) Section 9.3 is amended by deleting the reference to Section
6.3 at the end of Section 9.3 to read "Section 6.4";
(2) Section 9.3 is further amended by adding the following
new language at the end thereof:
"Notwithstanding Section 6.4, to the extent that shares of Class
A Common Stock of Tyson Foods, Inc. are owned by the Trust at the time of
such Plan termination distribution, such shares shall be allocated and
credited to the Distribution Accounts of all Participants in the
proportion which their respective account balances bear to the
aggregate fair market value of all assets owned by the Trust at
such time, and such stock will be distributed in kind if the
Participant is entitled to an immediate distribution, or in cash if a
deferred distribution is elected by the Participant."
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RESOLUTION REGARDING TERMINATION OF
PROFIT SHARING PLAN
OF TYSON FOODS, INC.
RESOLVED, that effective March 31, 1996, the Profit Sharing Plan is
terminated; the Company agrees to purchase from the trust for said plan
all employer real property currently owned by that trust and leased by
the Company, such purchases to be for the properties' fair market
values, as determined by updated independent appraisals, and with such
purchases to be consummated in time to permit distributions of cash from
the plan on or before March 31, 1997; such distributions from the
plan shall be made pursuant to the plan's terms and shall be made on
or before March 31, 1997.
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