Exhibit 10.4.h
FOURTH AMENDMENT OF
FMC CORPORATION EMPLOYEES' RETIREMENT PROGRAM
PART II UNION HOURLY EMPLOYEES' RETIREMENT PLAN
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(As Amended and Restated Effective January 1, 1999)
WHEREAS, FMC Corporation (the "Company") maintains the FMC Corporation
Employees' Retirement Program Part II Union Hourly Employees' Retirement Plan
(the "Plan"); and
WHEREAS, the Plan has been amended from time to time, and further amendment
of the Plan is now considered desirable;
NOW, THEREFORE, by virtue and in exercise of the powers reserved to the
Company under Section 11.1 Plan Amendment or Termination of the Plan, and
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pursuant to authority delegated to the undersigned officer of the Company by
resolution of its Board of Directors, the Plan is hereby amended, effective
January 1, 1999, in the following respects:
1. By inserting the following at the end of the definition of "Foreign
Subsidiary" in Article I of the Plan:
"Highly Compensated Employee means an Employee who:
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(a) at any time during the Determination Year or the Look-Back Year
owns (or is considered under Code Section 318 to own) more than
five percent of the Company or an Affiliate; or
(b) had more than $80,000, as adjusted, in compensation (as defined
in Code Section 415(c)(3)) from the Company and the Affiliates
during the Look-Back Year.
The 'Determination Year' is the Plan Year for which the determination of
who is a Highly Compensated Employee is being made, and the 'Look-Back
Year' is the 12 month period immediately preceding the determination year.
A former Employee of the Company or an Affiliate is a Highly
Compensated Employee for a given Determination Year if he or she separated
from service (or was deemed to have separated) before the Determination
Year, performs no services for a Participating Employer during the
Determination Year, and was a Highly Compensated Employee for the Plan Year
during which he or
she separated from service (or was deemed to have separated) or for any
Determination Year ending on or after his or her 55th birthday.
The Secretary of the Treasury or its delegate will adjust the $80,000
limit from time to time, to reflect increases in the cost of living.
Employees who are nonresident aliens and receive no earned income (within
the meaning of Code Section 911(d)(2)) from the Company and its Affiliates
that constitutes income from sources within the United States (within the
meaning of Code Section 861(a)(3)) are not treated as Employees for
purposes of this definition."
2. By inserting the following at the end of the definition of "Hour of
Service" in Article I of the Plan:
"Notwithstanding the foregoing, for purposes of Section 2.1(b)(ii),
"Hour of Service" means each hour for which an Employee is directly or
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indirectly paid or entitled to payment by the Company or an Affiliate:
(a) for the performance of duties;
(b) on account of a period of time during which no duties were
performed, provided that Hours of Service will not be credited for payments
made or due under a plan maintained solely for the purpose of complying
with applicable workers' compensation, unemployment compensation, or
disability insurance laws, or for payments that reimburse an Employee's for
medically related expenses; and
(c) for which back pay, irrespective of mitigation of damages, is
awarded or agreed to by the Company, provided that, the same Hours of
Service have not already been credited under (a) or (b) above.
No more than 501 Hours of Service will be credited for any single
continuous period of time during which the Employee performed no duties.
The determination of Hours of Service for reasons other than the
performance of duties shall be determined in accordance with the provisions
of Labor Department Regulations Section 2530.200b-2(b), which are
incorporated herein by reference, and Hours of Service shall be credited to
computation periods in accordance with the provisions of Labor Department
Regulations Section 2530.200b-2(c), which are incorporated herein by
reference."
3. By inserting the following at the end of Section 3.1.1:
"Notwithstanding anything to the contrary contained in the Plan, a
Participant's right to his or her Normal Retirement Benefit is
nonforfeitable upon the attainment of his or her Normal Retirement Date."
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4. By inserting the following at the end of Section 3.3.2:
"In the case of a Participant who commences distribution of his
accrued benefit beyond the April 1 of the calendar year following the year
in which he attains age 70 1/2, the Participant's accrued benefit shall be
actuarially increased to take into account the period after age 70 1/2 in
which the Participant was not receiving any benefits under the Plan."
5. By substituting the following for the last sentence of Section
3.5.1(iv)(3):
"The mortality basis for determining Actuarial Equivalence for
terminations prior to January 1, 1995 shall be the 1971 Group Annuity
Mortality Table (weighted 95% male and 5% female.) The mortality basis for
determining Actuarial Equivalence for terminations on or after January 1,
1995 shall be the 1983 Group Annuity Mortality Table (weighted 50% male and
50% female)."
6. By substituting the following for Section 3.5.1(iv)(4):
"In the case of a Participant whose retirement benefit commences after
Social Security Retirement Age, the dollar limitation shall be the
Actuarial Equivalent of Subsection (a) above payable at Social Security
Retirement Age. The interest rate for determining Actuarial Equivalence
shall be the greater of the interest rate assumption under the Plan for
determining early retirement benefits or 5% per year. The mortality basis
for determining Actuarial Equivalence for terminations prior to January 1,
1995 shall be the 1971 Group Annuity Mortality Table (weighted 95% male and
5% female.)" The mortality basis for determining Actuarial Equivalence for
terminations on or after January 1, 1995 shall be the 1983 Group Annuity
Mortality Table (weighted 50% male and 50% female)."
7. By inserting the following at the end of Section 3.5.1:
"(viii) For purposes of this section, "compensation" means
"compensation" within the meaning of Code Section 415(c)(3), and includes
all remuneration described in paragraph (d)(2) of Section 1.415-2 of the
regulations under the Code, and excludes all items described in paragraph
(d)(3) of Section 1.415-2 of the regulations and all other forms of
remuneration."
8. By inserting the following at the end of Section 3.5.2:
"3.5.3 Annual Compensation Limit: The accrued benefit of each
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"Section 401(a)(17) employee" under this Plan will be the greater of the accrued
benefit determined for the Employee under (a) or (b) below:
(a) the Employee's accrued benefit determined with respect to the
benefit formula applicable for the Plan Year beginning on or
after
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January 1, 1994, as applied to the Employee's total Years of
Credited Service, or
(b) the sum of:
(i) the Employee's accrued benefit as of the last day of the
last Plan Year beginning before January 1, 1994, frozen in
accordance with section 1.401(a)(4)-13 of the regulations
under the Code, and
(ii) the Employee's accrued benefit determined under the benefit
formula applicable for the Plan Year beginning on or after
January 1, 1994, as applied to the Employee's Years of
Credited Service credited to the Employee for Plan Years
beginning on or after January 1, 1994.
A "Section 401(a)(17) employee" means an Employee whose current
accrued benefit as of a date on or after the first day of the first
Plan Year beginning on or after January 1, 1994, is based on Earnings
for a year beginning prior to January 1, 1994 that exceeded
$150,000."
9. By deleting the words "highly compensated employee or former employee
(determined in accordance with section 414(g) of the Code and regulations
thereunder)" in Section 11.4 and substituting therefor the words "Highly
Compensated Employee."
10. By inserting the following at the end of Section 11.4:
"11.5 Provision To Prevent Discrimination
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11.5.1 Purpose. To prevent discrimination in favor of Highly
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Compensated Participants, the provisions of this Section 11.5 shall be
applicable notwithstanding anything elsewhere contained in the Plan to the
contrary.
11.5.2 Definitions. In this Section 11.5, the following terms shall
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have the meaning stated below:
"Benefit" shall include among other benefits under the Plan, loans in
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excess of the amounts set forth in Section 72(p)(2)(A) of the Code, any
periodic income, any withdrawal values payable to a living or former
Employee, and any death benefits under the Plan not provided for by
insurance on the Employee's or former Employee's life.
"Current Liabilities" shall have the meaning set forth in Section
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412(1)(7) of the Code.
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"Social Security Supplement" shall have the meaning set forth in
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Internal Revenue Service Regulation (S) 1.411(a)-7(c)(4)(ii).
11.5.3 Limitations.
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(a) In the event of termination of the Plan, the Benefit of
any Highly Compensated Employee (and any former Highly Compensated
Employee) is limited to a Benefit that is nondiscriminatory under
Section 401(a)(4) of the Code.
(b) The annual payments under the Plan to or on behalf of any
Employee described in Section 11.5.4 are restricted to an amount in
each taxable year of the Employee equal to the payments that would be
made to or on behalf of the Employee under:
(i) a straight life annuity that is the Actuarial
Equivalent of the accrued benefit and other Benefits to which
the Employee is entitled under the Plan (other than a Social
Security Supplement), and
(ii) the amount of the payments that the Employee is
entitled to receive under a Social Security Supplement.
(c) The restrictions in paragraph (b) above do not apply, if
any of the following requirements is satisfied:
(i) after payment to or on behalf of an Employee
described in Section 11.5.4 of all Benefits payable to or on
behalf of the Employee, the value of Plan assets equals or
exceeds 110% of the value of Current Liabilities,
(ii) the value of Benefits payable to or on behalf of an
Employee described in Section 11.5.4 is less than 1% of the
value of the Current Liabilities before distribution, or
(iii) the value of the Benefits payable to or on behalf of
an Employee described in Section 11.5.4 does not exceed the
amount described in Section 411(a)(11)(A) of the Code.
11.5.4 Employees Whose Benefits are Restricted. The Employees whose
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Benefits are restricted on distribution include all Highly Compensated
Employees and former Highly Compensated Employees.
A Highly Compensated Employee or former Highly Compensated Employee is
not subject to restriction under this Article if he is not one of the 25
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(or larger number chosen by the Company) excludable Employees and former
Employees of the Company with the largest amount of Earnings in the current
or in any prior Plan Year.
11.5.5 Reasonable Method. Any reasonable and consistent method
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selected by the Committee may be used to determine the value of Current
Liabilities and Plan Assets."
11. By inserting the following at the end of Section 13.2:
"In determining Top Heavy status, nonproportional subsidies are
considered, and proportional subsidies are ignored."
12. By changing the number "5" to the number "3" in Section 13.4.2.
13. By substituting the following for the definition of "Year of
Vesting Service" in Section 13-3 of Supplement 13:
"Year of Vesting Service means (a) the Employee's Years of
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Vesting Service under the Prior Plan prior to the Effective Date, and (b)
the total number of Plan Years in which the Employee is credited with 1000
or more Hours of Service or hours for any other signatory company which
counts vesting under their plan on the basis of hours worked or hours of
service. In no event shall an Employee be credited with more than one Year
of Vesting Service during a Plan Year."
IN WITNESS WHEREOF, the Company has caused this amendment to be executed by
a duly authorized representative this 1/st/ day of May, 2001.
FMC CORPORATION
By: /s/ Stephen F. Gates
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Member, Employee Welfare Benefits Plan
Committee
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