EXHIBIT 10(g)
CYPRUS AMAX MINERALS COMPANY
MATERIAL CONTRACTS
EXCESS DEFINED CONTRIBUTION PLAN
EXHIBIT 10(g)
CYPRUS AMAX MINERALS COMPANY
EXCESS DEFINED CONTRIBUTION PLAN
Amended and Restated Effective January 1, 1999
TABLE OF CONTENTS
Page
1. Purpose................................................... 1
2. Definitions............................................... 1
(a) Account.............................................. 1
(b) Board................................................ 1
(c) Change of Control.................................... 1
(d) Code................................................. 2
(e) Committee............................................ 2
(f) Company.............................................. 2
(g) Company Matching Contributions....................... 2
(h) Compensation......................................... 3
(i) Deferred Plan........................................ 3
(j) Eligible Employee.................................... 3
(k) Excess Tax-Deferred Savings.......................... 3
(l) Excess Company Matching Contributions................ 3
(m) Investment Funds..................................... 3
(n) Participant.......................................... 3
(o) Participating Subsidiary............................. 3
(p) Plan................................................. 3
(q) Retirement........................................... 3
(r) Savings Plan......................................... 3
(s) Separation From Service.............................. 3
(t) Tax-Deferred Savings................................. 3
(u) Total Disability..................................... 4
(v) Valuation Date....................................... 4
3. Excess Tax-Deferred Savings............................... 4
4. Excess Company Matching Contributions..................... 4
5. Vesting................................................... 4
6. Payment of Benefits....................................... 4
7. Change of Control......................................... 5
8. Designation of Beneficiary................................ 5
9. Investment Funds.......................................... 5
10. Hardship; Discretionary Revision of Payments.............. 6
11. Amendment and Termination................................. 6
12. Nonalienation of Benefits................................. 6
13. Administration............................................ 6
14. Appeals Procedure......................................... 7
15. No Contract of Employment................................. 7
16. Withholding Taxes......................................... 7
17. Notices................................................... 7
18. Severability of Provisions................................ 7
19. Headings and Captions..................................... 7
20. Applicable Law............................................ 7
CYPRUS AMAX MINERALS COMPANY
EXCESS DEFINED CONTRIBUTION PLAN
1. Purpose. The Plan, which was established effective January 1,
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1994, is hereby amended and restated in its entirety, as set forth herein,
effective January 1, 1999, for the purpose of providing Participants with
benefits which would otherwise be provided under the Savings Plan but for
reductions or restrictions of such benefits required by federal law.
Specifically, this Plan is intended to provide Participants with
supplemental retirement benefits to compensate them for the loss of benefits
that would otherwise have been accrued under the Savings Plan were it not for
restrictions on Participants' elective deferrals and the resulting restrictions
on Company matching contributions under Sections 401(a)(17), 401(k)(3),
401(m)(2), and 401(m)(9) of the Code. The Plan is to be unfunded and is
maintained for the purpose of providing deferred compensation for a select group
of management or highly compensated employees for purposes of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations
promulgated thereunder.
2. Definitions.
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(a) "Account" shall mean a bookkeeping account established under
the Plan to record the Excess Tax-Deferred Savings, Excess Company Matching
Contributions, and earnings thereon, credited with respect to each Participant.
(b) "Board" shall mean the Board of Directors of the Company.
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(c) "Change of Control" shall mean the occurrence of any of the
following events:
(1) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-
five percent (35%) or more of either (A) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (B) the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that for purposes of this
Section 2(c)(1), the following acquisitions shall not constitute a Change of
Control: (A) any acquisition directly from the Company, (B) any acquisition by
the Company, (C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company, or (D) any acquisition by any corporation pursuant to a transaction
which complies with Sections (3)(A) and (B).
(2) Individuals who, as of January 1, 1994, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to January 1, 1994, whose election, or nomination for
election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(3) Consummation of a reorganization, merger or consolidation
involving the Company or any subsidiary of the Company or sale or other
disposition of all or substantially all of the assets of the Company (a
"Business Combination"), in each case, unless, following such Business
Combination, either (A)(i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
fifty percent (50%) of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may be, of
the corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the Company
or all or substantially all of the Company's assets either directly or through
one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be or (ii) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination and (B) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, thirty-five percent (35%) or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination; or
(4) A complete liquidation or dissolution of the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
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amended, and the regulations promulgated thereunder.
(e) "Committee" shall mean the individuals designated by the
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Company to administer the Savings Plan.
(f) "Company" shall mean Cyprus Amax Minerals Company.
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(g) "Company Matching Contributions" shall mean the "Company
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Matching Contributions" (as such term is defined in the Savings Plan) allocated
to a Participant under the Savings Plan.
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(h) "Compensation" shall have the same meaning as such term has
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under the Savings Plan, including, however, amounts in excess of the amount
limited pursuant to Section 401(a)(17) of the Code, and including any base
salary amounts deferred under the Deferred Plan.
(i) "Deferred Plan" shall mean the Cyprus Amax Minerals Company
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Deferred Compensation Plan, as amended from time to time.
(j) "Eligible Employee" shall mean any employee of the Company or
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a Participating Subsidiary who (1) is eligible to participate in the Savings
Plan, (2) has base compensation, determined as of the last day of the last
quarter of the calendar year immediately preceding the year of participation in
the Plan, in an amount which equals or exceeds $100,000 before taking into
account Eligible Employee's Tax-Deferred Savings under the Savings Plan and his
salary deferrals under the Deferred Plan, and (3) is employed in exempt salary
grade 17 and above.
(k) "Excess Tax-Deferred Savings" shall mean the amounts
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deferred by a Participant under Section 3 hereof.
(l) "Excess Company Matching Contributions " shall mean the
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amounts contributed by the Company under Section 4 hereof.
(m) "Investment Funds" shall mean the investment funds
established from time to time under the Plan in which Excess Tax-Deferred
Savings and Excess Company Matching Contributions are to be invested, as
described in Section 9 hereof.
(n) "Participant" shall mean any Eligible Employee who has
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elected to make Excess Tax-Deferred Savings or who has an Account.
(o) "Participating Subsidiary" shall mean any subsidiary or
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affiliate of the Company that has been approved for participation in this Plan
by the Committee.
(p) "Plan" shall mean the Cyprus Amax Minerals Company Excess
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Defined Contribution Plan as described herein and as it may be amended from time
to time.
(q) "Retirement" shall mean the date the Eligible Employee
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terminates employment with the Company coincident with or following his
attainment of age 65.
(r) "Savings Plan" shall mean the Cyprus Amax Minerals Company
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Savings Plan and Trust, as it may be amended from time to time.
(s) "Separation From Service" shall have the same meaning as such
term has under the Savings Plan.
(t) "Tax-Deferred Savings" shall mean the Participant's "Tax-
Deferred Savings" (as such term is defined in the Savings Plan) made under the
Savings Plan.
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(u) "Total Disability" shall have the same meaning as such term has
under the Savings Plan.
(v) "Valuation Date" shall mean the last day of each calendar
month, or such other dates as the Committee determines to be necessary or
appropriate as of which to value the Accounts of Participants.
3. Excess Tax-Deferred Savings.
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(a) Each Participant may elect to make Excess Tax-Deferred Savings
for any calendar year by filing an election, utilizing the form provided by the
Committee for such purpose, on or before the date established by the Committee
which falls in the last quarter of the immediately preceding calendar year. Such
an election shall be irrevocable during the calendar year for which it is made.
A Participant may continue, modify, revoke, or resume his election to make
Excess Tax-Deferred Savings with respect to a subsequent calendar year by filing
his written notice with the Committee, on a form supplied by the Committee for
such purpose, on or before the date established by the Committee which falls in
the last calendar quarter immediately preceding the calendar year in which the
continuation, modification, revocation, or resumption is to be effective.
(b) The amount of a Participant's Excess Tax-Deferred Savings for
any calendar year shall be equal to an amount elected by the Participant which
is not less than one percent (1%) and not greater than sixteen percent (16%) of
his Compensation, reduced by the amount of his Tax-Deferred Savings for the
calendar year.
(c) As soon as practicable and in a manner consistent with the
administration of the Savings Plan, the Company shall, on a monthly basis,
reduce each Participant's Compensation and credit to such Participant's Account
an amount equal to the percentage elected by such Participant under Section
3(b).
4. Excess Company Matching Contributions.
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(a) The Company shall make an Excess Company Matching Contribution
on behalf of each Participant in an amount equal to fifty percent (50%) of such
Participant's Excess Tax-Deferred Savings for a calendar quarter not in excess
of six percent (6%) of Compensation, reduced by the amount of Company Matching
Contribution allocated to such Participant under the Savings Plan for the same
calendar quarter.
(b) As soon as practicable and in a manner consistent with the
Savings Plan, the Company shall, on a quarterly basis, credit to each
Participant's Account that portion of the Excess Company Matching Contribution
that is determined under Section 4(a) and attributable to Compensation paid with
respect to such calendar quarter.
5. Vesting. A Participant's interest in his Account shall at all
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time be nonforfeitable and fully vested.
6. Payment of Benefits. Pursuant to the Participant's election,
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made as a part of the election to defer monies under this Plan, the amount to
the credit of the Participant's Account shall be paid to the Participant in a
single lump sum cash payment or in substantially equal annual installments over
a period of years, not to exceed ten (10), on the first day of the month next
following the date which is thirty (30) days after the Participant's Retirement
or other Separation from Service, including Separation from Service on account
of the Participant's Total Disability. If a Participant has elected to be paid
his Account in installments and he dies after such payments have commenced, then
any remaining installments shall be paid annually to the Participant's
designated beneficiary (determined pursuant to Section 8). In the event of a
Participant's death before his Account has been paid to him, the
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Participant's Account shall be paid to his designated beneficiary (determined
pursuant to Section 8) in a single lump sum cash sum or in substantially equal
annual installments over a period of years, not to exceed ten (10), as elected
by the Participant, on the first day of the month next following the date which
is thirty (30) days after the Participant's death.
7. Change of Control. As soon as administratively practicable and
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in no event later than thirty (30) days following a Change of Control, all of
the amounts to the credit of Participants' Accounts hereunder shall be
distributed to the Participants.
8. Designation of Beneficiary.
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(a) Subject to applicable law, each Participant shall have the
right to file with the Committee a written designation, utilizing the form
provided by the Committee for such purpose, of one or more persons as the
Participant's beneficiary who shall be entitled to receive the amount payable
under the Plan, if any, upon the Participant's death. A Participant may, from
time to time, revoke or change such beneficiary designation without the consent
of any prior beneficiary by filing a new designation with the Committee. The
last such designation received by the Committee shall be controlling; provided,
however, that no designation, or change or revocation thereof, shall be
effective unless received by the Committee prior to the Participant's death.
(b) If no such beneficiary designation is in effect at the time of
a Participant's death, or if no designated beneficiary survives the Participant,
or if such designation conflicts with applicable law, the amount, if any,
payable under the Plan upon the Participant's death shall be paid to the
Participant's estate. If the Committee is in doubt as to the right of any person
to receive any amount, the Committee may retain such amount, which shall
continue to accrue interest, until the rights thereto are determined, or the
Committee may pay such amount into any court of appropriate jurisdiction, and
such payment shall be a complete discharge of the liability of the Plan, the
Company and the Committee therefor. Any payment made pursuant to this Section
8(b) of the Plan shall be made by the Committee as soon as practicable under the
circumstances.
9. Investment Funds.
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(a) Each Participant may elect, in the form and manner provided by
the Committee, to invest the amounts credited to his Account in any one or a
combination of Investment Funds. Such an election may be modified on such basis
as permitted by the Committee, which shall be at least quarterly. Separate
Accounts shall be maintained for each Participant.
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(b) The Investment Funds shall remain an asset of the Company and
shall be subject to the claims of its general creditors. Each Participant shall
have no greater right or status than as an unsecured creditor of the Company
with respect to any amounts owed to such Participant from the Investment Funds.
10. Hardship; Discretionary Revision of Payments. If the Committee
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determines that payment of the Participant's Account in accordance with the
schedule of payments designated by the Participant would, for whatever reason,
result in a gross hardship on the Participant or the estate or beneficiary or
beneficiaries of the Participant, the Committee, upon a showing of gross
hardship by the Participant or the Participant's beneficiary or beneficiaries or
legal representative, in its absolute discretion, may revise such schedule of
payments to the extent necessary to alleviate the hardship.
11. Amendment and Termination. The Company, by or pursuant to
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written action by the Board, hereby reserves the right to amend this Plan at any
time and from time to time in any fashion, and to terminate the Plan at any
time; provided, however, that no amendment or termination of the Plan shall
adversely affect the right of any Participant with respect to the amounts
previously credited to such Participant's Account.
12. Nonalienation of Benefits. All payments to persons entitled to
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benefits hereunder shall be made to such persons and shall not be alienable,
transferable or otherwise assignable in anticipation of payment thereof, in
whole or in part, by the voluntary or involuntary acts of any such persons, or
by operation of law, and shall not be liable or taken for any obligation of such
person, except pursuant to the laws of descent and distribution.
13. Administration.
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(a) This Plan shall be administered by the Committee, which shall
be responsible for the interpretation of the Plan and the establishment of rules
and regulations governing the Plan's administration. Any decision or action made
or taken by the Committee, arising out of or in connection with the
construction, administration or interpretation of the Plan or of its rules and
regulations, shall be conclusive and binding upon all Eligible Employees,
Participants, former Participants and their beneficiaries unless otherwise
determined by the Board. All expenses of administering the Plan shall be paid by
the Company and shall not affect Participants' rights to or amounts of benefits.
(b) Neither the Committee nor any member thereof nor the Company
shall be liable for any action or determination made in good faith with respect
to the Plan or the rights of any person under the Plan.
(c) The Committee or persons designated by it shall keep such
records as may be necessary for the administration of the Plan and shall furnish
Participants with such periodic statements as it may determine to be necessary
or desirable to reflect their interests in the Plan.
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(d) The Committee shall have the power to make such adjustments
to the terms of the Plan, and to make such interpretations of the terms of the
Plan, as are necessary to effectuate the purposes of the Plan.
14. Appeals Procedure. The Committee shall provide any Participant
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whose claim for benefits under the Plan has been denied with adequate notice of
and shall afford such Participant an opportunity for full and fair review of
such denial.
15. No Contract of Employment. Nothing contained herein shall be
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construed as conferring upon any person the right to be employed or to continue
in the employ of the Company.
16. Withholding Taxes. The Company shall have the right to
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withhold taxes from any Excess Company Matching Contributions, Excess Tax-
Deferred Savings, and any payments made pursuant to the Plan, or make such other
provisions as it deems necessary or appropriate to satisfy its obligations to
withhold federal, state, local or foreign income or other taxes arising under
this Plan.
17. Notices. Each Participant shall be responsible for furnishing
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the Committee with his current and proper address for the mailing of notices and
delivery of agreements and payments. Any notice required or permitted to be
given shall be deemed to have been given if directed to the person to whom
addressed at such address and mailed by regular United States mail, first-class
and prepaid. If any item mailed to such address is returned as undeliverable to
the addressee, mailing will be suspended until the Participant or beneficiary
furnishes the proper address.
18. Severability of Provisions. If any provision of this Plan
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shall be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof, and this Plan
shall be construed and enforced as if such provision had not been included.
19. Headings and Captions. The headings and captions herein are
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provided for reference and convenience only, shall not be considered part of the
Plan, and shall not be employed in the construction of the Plan.
20. Applicable Law. The Plan shall be construed under the laws of
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the State of Colorado, to the extent not preempted by the Employee Retirement
Income Security Act of 1974, as amended, or other federal law.
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IN WITNESS WHEREOF, the foregoing Plan as amended and restated is
adopted this 30th day of November, 1998.
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CYPRUS AMAX MINERALS COMPANY
BENEFITS COMMITTEE
By: /s/ Philip C. Wolf
Philip C. Wolf, Chairman
By: /s/ Chris L. Crowl
Chris L. Crowl, Member
By: /s/ Farokh S. Hakimi
Farokh S. Hakimi, Member
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