The Plan. Pursuant to the requirements of the Securities Act of 1933, as
amended, the Plan administrator has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Bedford Park and the State of Illinois, on this 29th day of December
1997.
CORN PRODUCTS INTERNATIONAL, INC.
SAVINGS PLAN
By: /s/ John Surowiec
------------------------------
Name: John Surowiec
Title: Plan Administrator
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EXHIBIT 4.1
CORN PRODUCTS INTERNATIONAL, INC.
RETIREMENT SAVINGS PLAN
Effective January 1, 1998
TABLE OF CONTENTS
Page
INTRODUCTION............................................................... 1
ARTICLE 1 DEFINITIONS.................................................... 1
1.1 "Account"............................................. 1
1.2 "Affiliate"........................................... 1
1.3 "Board of Directors".................................. 1
1.4 "Break in Service Year"............................... 1
1.5 "Code"................................................ 1
1.6 "Committee"........................................... 1
1.7 "Company"............................................. 1
1.8 "Company Stock"....................................... 2
1.9 "Compensation"........................................ 2
1.10 "CPC Plan"............................................ 2
1.11 "Deferred Contribution"............................... 2
1.12 "Deferred Contribution Account"....................... 2
1.13 "Disabled Participant"................................ 2
1.14 "Effective Date"...................................... 2
1.15 "Eligible Employee"................................... 2
1.16 "Employee"............................................ 2
1.17 "Employer"............................................ 3
1.18 "Employer Contribution"............................... 3
1.19 "ERISA"............................................... 3
1.20 "Hour of Service"..................................... 3
1.21 "Matching Contribution"............................... 4
1.22 "Matching Contribution Account"....................... 4
1.23 "Participant"......................................... 4
1.24 "Participant Contribution"............................ 4
1.25 "Participant Contribution Account".................... 4
1.26 "Plan"................................................ 4
1.27 "Plan Administrator".................................. 4
1.28 "Plan Year"........................................... 4
1.29 "Profit Sharing Account".............................. 5
1.30 "Profit Sharing Contribution"......................... 5
1.31 "Rollover Account".................................... 5
1.32 "Trust Agreement"..................................... 5
1.33 "Trust Fund".......................................... 5
1.34 "Trustee"............................................. 5
1.35 "Valuation Date"...................................... 5
1.36 "Year of Service"..................................... 5
ARTICLE 2 ELIGIBILITY AND PARTICIPATION.................................. 5
2.1 Eligibility to Become a Participant................... 5
2.2 Election to Commence Participation.................... 5
2.3 Cessation of Participation............................ 5
2.4 Leased Employees...................................... 5
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ARTICLE 3 PARTICIPANT CONTRIBUTIONS AND DEFERRED CONTRIBUTIONS........... 6
3.1 Participant Contributions............................. 6
3.2 Changes in and Terminations of Participant
Contributions........................................ 6
3.3 Deferred Contributions................................. 6
3.4 Changes in and Terminations of Deferred
Contributions........................................ 7
3.5 Annual Limit on Deferred Contributions................. 7
ARTICLE 4 EMPLOYER CONTRIBUTIONS.......................................... 7
4.1 Matching Contributions................................. 7
4.2 Profit Sharing Contributions........................... 7
ARTICLE 5 STATUTORY LIMITATIONS ON BENEFITS............................... 8
5.1 Maximum Annual Additions Under Section 415 of the
Code................................................. 8
5.2 Limitations on Contributions for Highly
Compensated Employees................................ 9
5.3 Limitation on Contributions........................... 14
ARTICLE 6 TRUST.......................................................... 14
ARTICLE 7 INVESTMENT ELECTIONS AND ALLOCATIONS TO PARTICIPANTS'
ACCOUNTS..................................................... 15
7.1 Separate Accounts and Investment Elections............ 15
7.2 Allocation of Contributions and Withdrawals to
Accounts............................................ 16
7.3 Valuation of Participants' Accounts................... 17
7.4 Correction of Error. ................................. 18
ARTICLE 8 WITHDRAWALS AND LOANS.......................................... 18
8.1 Withdrawals Prior to Termination of Employment........ 18
8.2 Loans to Participants. ............................... 20
ARTICLE 9 DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT................... 23
9.1 Entitlement to Distribution Upon Termination of
Employment.......................................... 23
9.2 Form of Distribution.................................. 23
9.3 Time of Distribution.................................. 24
9.4 Valuation of Accounts................................. 25
ARTICLE 10 SPECIAL PARTICIPATION AND DISTRIBUTION RULES................... 25
10.1 Direct Rollover Option................................ 25
10.2 Distribution of Small Account Balances................ 25
10.3 Designation of Beneficiary. ......................... 26
10.4 Distributions to Minor or Disabled Beneficiaries...... 27
10.5 Qualified Domestic Relations Orders................... 27
10.6 Reemployment of Veterans.............................. 27
10.7 Special Rules Relating to Election of Annuity Form
of Benefit.......................................... 28
ARTICLE 11 SHAREHOLDER RIGHTS WITH RESPECT TO COMPANY STOCK............... 29
11.1 Voting Rights......................................... 29
11.2 Shareholder Rights in the Event of a Tender Offer..... 30
11.3 Bestfoods Stock Fund.................................. 31
11.4 Applicability......................................... 31
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ARTICLE 12 ADMINISTRATION................................................. 31
12.1 The Committee......................................... 31
12.2 Investment Committee.................................. 32
12.3 Authority and Duties of the Committee................. 32
12.4 Plan Administrator.................................... 32
12.5 Review of Fiduciary Responsibility Designations
or Allocations...................................... 33
12.6 Reliance on Others.................................... 33
12.7 Liability. .......................................... 33
12.8 Claims Procedure...................................... 33
ARTICLE 13 PARTICIPATION IN PLAN BY AFFILIATE............................. 34
13.1 Adoption by Participating Employers................... 34
13.2 Special Provisions for Employees of Acquired
Companies........................................... 34
ARTICLE 14 AMENDMENT AND TERMINATION...................................... 34
14.1 Amendment............................................. 34
14.2 Termination........................................... 34
14.3 Full Vesting Upon Termination......................... 35
14.4 Segregation of Trust.................................. 35
14.5 Committee Determination Conclusive.................... 35
ARTICLE 15 TOP-HEAVY PROVISIONS........................................... 35
15.1 Definitions........................................... 35
15.2 Adjustments for Top-Heavy Years....................... 36
ARTICLE 16 GENERAL PROVISIONS............................................. 37
16.1 Limitation of Rights.................................. 37
16.2 No Right to Employment................................ 37
16.3 Payments Due to Missing Participants.................. 37
16.4 Transfer to an Affiliate.............................. 37
16.5 Election Made Through Telephone System................ 37
16.6 Merger or Consolidation with Another Plan............. 37
16.7 Company Action........................................ 37
16.8 Headings.............................................. 38
16.9 Gender and Plurals.................................... 38
16.10 Construction.......................................... 38
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INTRODUCTION
Effective as of the close of business on December 31, 1997, CPC International
Inc. ("CPC") spun-off its corn refining business to CPC shareholders through a
distribution of all of the shares of Corn Products International, Inc. ("Corn")
(the "Spin-Off"). In connection with the Spin-Off, Corn has adopted this Plan
(the "Corn Savings Plan") for the benefit of certain employees. As soon as
practicable after December 31, 1997, CPC will cause the Trustee of the CPC
International Inc. Savings/Retirement Plan for Salaried Employees (the "CPC
Plan") to transfer assets from the CPC Plan trust fund to the Trustee of this
Plan with respect to the accounts of Corn salaried employees.
The Corn Products International, Inc. Retirement Savings Plan is intended to
qualify as a profit sharing plan within the meaning of section 401(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), with a qualified cash or
deferred arrangement described in section 401(k) of the Code, and its related
trust is intended to be tax-exempt under section 501(a) of the Code.
ARTICLE 1
DEFINITIONS
The following words and phrases shall, for the purpose of this Plan and any
subsequent amendment thereof, have the following meanings, unless a different
meaning is plainly required by the context:
1.1 "Account" means a Participant's Account under the Plan, which is
composed of the Participant Contribution Account, Deferred Contribution
Account, Matching Contribution Account, Profit Sharing Account and Rollover
Account, maintained for a Participant under the Plan to which are credited
the Participant's share of contributions and earnings and debited the
withdrawals and losses thereon.
1.2 "Affiliate" means (i) any corporation which is a member of a
controlled group of corporations (as defined in section 414(b) of the Code)
which includes the Company, (ii) any trade or business (whether or not
incorporated) which is under common control (as defined in section 414(c)
of the Code) with the Company, (iii) any organization (whether or not
incorporated) which is a member of an affiliated service group (as defined
in section 414(m) of the Code) which includes the Company; and (iv) any
other entity required to be aggregated with the Company pursuant to final
regulations under section 414(o) of the Code; provided, however, that such
corporation, trade or business, organization, or other entity shall be
deemed to be an Affiliate only during the period in which the particular
relationship existed.
1.3 "Board of Directors" means the Board of Directors of the Company,
as constituted from time to time.
1.4 "Break in Service Year" means a Plan Year in which an Employee
completes 500 or fewer Hours of Service.
1.5 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.6 "Committee" means the Committee appointed by the Company to
administer the Plan, pursuant to Article 12.
1.7 "Company" means Corn Products International, Inc.
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1.8 "Company Stock" means common stock of the Company.
1.9 "Compensation" means an Employee's wages as identified under Box 1
of Form W-2 (but determined without regard to rules that limit remuneration
based on the nature or location of the employment or the services
performed), plus elective contributions that are made by an Employer on
behalf of the Employee that are not includible in gross income under
section 125 or 402(e)(3) of the Code; but reduced by all of the following
items, even if includible in gross income: any bonuses received as
long-term incentive bonuses, income attributable to the exercise of stock
options, reimbursements or other expense allowances (such as car
allowances), fringe benefits (cash and noncash), moving expenses, deferred
compensation, and welfare benefits. For purposes of determining
Compensation earned for services performed outside the United States,
Compensation shall be imputed at a rate equal to the base rate of pay in
effect for the Participant for the last calendar year employed by an
Employer in the United States.
Notwithstanding the foregoing, an Employee's Compensation in a Plan
Year in excess of (i) with respect to the 1998 Plan Year, $160,000 and (ii)
with respect to each subsequent Plan Year, the amount prescribed by section
401(a)(17) of the Code, shall be disregarded for all purposes under the
Plan.
1.10 "CPC Plan" means the CPC International Inc. Savings/Retirement
Plan for Salaried Employees.
1.11 "Deferred Contribution" means a contribution made by an Employer
on behalf of a Participant on a before-tax basis, as described in Section
3.3
1.12 "Deferred Contribution Account" means the account maintained for
a Participant to which are allocated the Deferred Contributions made on
behalf of such Participant pursuant to Section 3.3 on a before-tax basis,
plus earnings and net of any withdrawals or losses.
1.13 "Disabled Participant" means a Participant who is entitled to
receive long-term disability benefits under a long-term disability plan
maintained by an Employer.
1.14 "Effective Date" means January 1, 1998.
1.15 "Eligible Employee" means (a) each Employee of an Employer and
(b) any United States citizen or any permanent United States resident of an
Employer who is employed by a foreign affiliate of an Employer which is an
Affiliate, but excluding (i) any Employee who at the time is or later
becomes covered by a collective bargaining agreement with an Employer,
resulting from negotiations in which retirement benefits were the subject
of good faith bargaining between the Employer and employee representatives,
that does not provide for participation in this Plan, (ii) an Employee who
is neither a citizen nor a resident alien of the United States and who
receives no earned income within the meaning of section 911(d)(2) of the
Code from an Employer which constitutes income from sources within the
United States within the meaning of section 861(a)(3) of the Code or who is
hired for a temporary assignment, (iii) any "leased employee" as defined in
section 414(n) of the Code and (iv) any Employee who is a member of a class
of Employees, or is employed at a division or unit of the Company or
another participating Employer, which has been designated by the Company or
such Employer as excluded from participation in this Plan.
1.16 "Employee" means each individual whose relationship with an
Employer is, under common law, that of an employee. Notwithstanding the
foregoing, the term "Employee" shall exclude any individual retained by an
Employer to perform services for such Employer (for either a definite or
-3-
indefinite duration) and is characterized thereby as a fee-for-service
worker or independent contractor or in a similar capacity (rather than in
the capacity of an employee), regardless of such individual's status under
common law or for purposes of federal, state or local tax withholding,
employment tax or employment law.
1.17 "Employer" means the Company and any other Affiliate which, with
the consent of the Company, elects to participate in this Plan pursuant to
Section 13.1.
1.18 "Employer Contribution" means a contribution made by an Employer,
other than a Deferred Contribution, to a Participant's account pursuant to
the terms of the Plan as in effect at the applicable time.
1.19 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.20 "Hour of Service" (a) means each hour for which an Employee:
(1) is paid, directly or indirectly, or entitled to payment, for
the performance of duties for an Employer during the applicable
computation period;
(2) is paid, directly or indirectly, or entitled to payment, by
an Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence,
except that:
(i) no more than 501 hours shall be credited to an Employee
on account of any single continuous period during which the
Employee performs no duties (whether or not such period occurs in
a single computation period); and
(ii) no credit shall be given for any hour attributable,
directly or indirectly, to a payment made or due under a plan
maintained solely for the purpose of complying with applicable
workers' compensation, unemployment compensation or disability
insurance laws, or to reimburse an Employee for medical or
medically related expenses incurred by the Employee;
(3) receives back pay, irrespective of mitigation of damages,
under an award or an agreement with an Employer. No hour shall be
credited under both this subsection (3) and under subsection (1) or
subsection (2), as the case may be. In addition, hours credited under
this subsection which are attributable to periods referred to in
subsection (2) shall be subject to the limitations set forth in that
subsection; and
(4) is normally scheduled to work doing a period when the
Employee is absent from employment with an Employer for voluntary or
involuntary military service with the armed forces of the United
States, provided that such Employee returns to work within 90 days
after his discharge date or such longer period of time as may be
prescribed by the Uniformed Services Employment and Reemployment
Rights Act of 1994 ("USERRA").
(b) For purposes of this Section, a Participant who is absent from
work for maternity or paternity reasons shall receive credit for the hours
of service for which he would normally have received credit but for such
absence, up to a maximum of 501 hours. An absence from work for maternity
or pa-
-4-
ternity reasons means an authorized absence because of the Participant's
pregnancy, the birth of a child of the Participant, the placement of a
child with the Participant in connection with the Participant's adoption of
such child, or for purposes of caring for such child immediately following
its birth or adoption placement. The computation period to which such hours
of service are to be credited shall be:
(i) the 12-consecutive-month period beginning on the annual
anniversary of the Employee's date of hire in which the absence
from work begins if such crediting is necessary to prevent the
Participant from incurring a Break in Service Year; or
(ii) the immediately following 12-consecutive-month period
in any other case.
A Participant shall not receive credit for Years of Service for the
hours of service credited for maternity or paternity leave for any purpose
of the Plan other than determining whether a Break in Service Year has
occurred. This subsection shall not in any way be deemed to grant any
rights to maternity or paternity leave.
The special rules provided in Department of Labor ("DOL") Regulation
section 2530.200b-2(b) and (c) shall be used to determine the number of
hours to be credited for periods during which no duties are performed and
for back pay awards, and the computation periods to which they are to be
credited under subsections (b) and (c); provided, however, that in
accordance with DOL Regulation Section 2530.2006-3(e)(1)(ii) any employee
for whom an Affiliate does not keep a record of actual hours worked shall
be credited with 45 Hours of Service for any week in which the Employee
earns an Hour of Service in any week, and accordingly, Hours of Service
shall be credited in weekly equivalencies for each such Employee.
1.21 "Matching Contribution" means a contribution made by an Employer
on behalf of a Participant as provided in Section 4.1.
1.22 "Matching Contribution Account" means the account maintained for
a Participant to which are allocated the Matching Contributions, if any,
made on such Participant's behalf, plus earnings and net of any withdrawals
or losses.
1.23 "Participant" means an Eligible Employee who satisfies the
requirements for participation pursuant to Article 2.
1.24 "Participant Contribution" means a contribution made by a
Participant on an after-tax basis, as described in Section 3.1.
1.25 "Participant Contribution Account" means the account maintained
for a Participant to which are credited the Participant Contributions made
by such Participant, plus earnings and net of any withdrawals or losses.
1.26 "Plan" means the plan as set forth herein and as it may be
amended from time to time.
1.27 "Plan Administrator" means the person appointed by the Committee
pursuant to Section 12.4 to fulfill the responsibilities relating to the
administration of the Plan specified therein.
1.28 "Plan Year" means the 12-month period ending on each December 31.
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1.29 "Profit Sharing Account" means the account maintained for a
Participant to which are allocated the Profit Sharing Contributions, if
any, made on behalf of such Participant pursuant to Section 4.2 plus
earnings and net of any withdrawals or losses.
1.30 "Profit Sharing Contribution" means a contribution made by an
Employer on behalf of a Participant as provided in Section 4.2.
1.31 "Rollover Account" means the account maintained for a Participant
to which are allocated the rollover contributions made by the Participant
pursuant to Section 10.1, plus earnings and net of any withdrawals or
losses.
1.32 "Trust Agreement" means the trust agreement as amended from time
to time, between the Company (acting on behalf of the Employers) and the
Trustee or Trustees, established for the purpose of funding the benefits
under this Plan.
1.33 "Trust Fund" means all such money or other property which shall
be held by the Trustee pursuant to the terms of the Trust Agreement.
1.34 "Trustee" means the trustee or trustees acting as such under the
Trust Agreement, including any successor or successors.
1.35 "Valuation Date" means any date on which the New York Stock
Exchange is open for trading.
1.36 "Year of Service" means each Plan Year during which any
individual completes 1,000 or more Hours of Service. This shall include any
Years of Service recognized under the CPC Plan.
ARTICLE 2
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility to Become a Participant. An Eligible Employee shall be
eligible to become a Participant on the first date on which he completes an Hour
of Service with an Employer. Notwithstanding anything contained herein to the
contrary, an Employee who was a participant in the CPC Plan on December 31,
1997, shall be eligible to become a Participant on the Effective Date.
2.2 Election to Commence Participation. Each Eligible Employee is required
to make an election to participate prior to his commencement of participation in
the Plan. An Eligible Employee's election to commence participation in the Plan
shall become effective on the first day of the first calendar month coincident
with or next following the date he has satisfied the eligibility requirements
set forth in Section 2.1. If an Eligible Employee does not properly elect to
commence participation as of such date, he may commence his participation on the
first day of any subsequent month.
2.3 Cessation of Participation. An Eligible Employee who becomes a
Participant shall remain a Participant until his entire Account balance is
distributed to him.
2.4 Leased Employees. If an individual who performed services as a leased
employee (within the meaning of section 414(n)(2) of the Code) of an Employer or
an Affiliate becomes an Employee, or if an Employee becomes such a leased
employee, then any period during which such services were so performed shall be
-6-
taken into account solely for the purposes of (i) determining whether and when
such individual is eligible to participate in the Plan under this Article 2,
(ii) measuring such individual's Years of Service, and (iii) determining when
such individual has retired or otherwise terminated his or her employment for
purposes of Article 9 to the same extent it would have been had such service
been as an Employee. This Section shall not apply to any period of service
during which such a leased employee was covered by a plan described in section
414(n)(5) of the Code.
ARTICLE 3
PARTICIPANT CONTRIBUTIONS AND DEFERRED CONTRIBUTIONS
3.1 Participant Contributions.
(a) Subject to the limitations prescribed in Article 5, an Eligible
Employee may elect to make Participant Contributions under the Plan on an
after-tax basis. Any such election shall be made in the manner prescribed by the
Plan Administrator. Such election shall be effective beginning on the first day
of the payroll period which is at least one day following receipt by the Plan
Administrator of the Participant's election. The Eligible Employee's election
shall authorize such individual's Employer to deduct Participant Contributions
through regular payroll deductions in the amount specified by the Participant
according to the provisions of subsection (b). An Eligible Employee who is not
otherwise a Participant in the Plan shall become a Participant upon making an
election to make Participant Contributions as described herein. No contributions
shall be made by a Participant subsequent to the Valuation Date coincident with
or immediately preceding the date of his termination of employment.
(b) A Participant's Participant Contributions shall be designated by the
Participant as a whole percentage not less than 1% nor more than 16% of his
Compensation per pay period. Participant Contributions shall be effected by
payroll deductions made each pay period, on an after-tax basis. In no event
shall the total of Participant Contributions under this Section 3.1 and Deferred
Contributions under Section 3.3 be more than 16% of the Participant's
Compensation during any period in which contributions are made.
3.2 Changes in and Terminations of Participant Contributions. The
contributions referred to in Section 3.1 shall be entirely voluntary on the part
of a Participant. A Participant may revoke his election to contribute at any
time or he may change the rate of his contributions within the percentage limits
permitted under Section 3.1 at any time by notifying the Plan Administrator in
the manner specified by the Plan Administrator. A change in the rate of
contributions or revocation of an election to contribute becomes effective on
the first day of the payroll period which is at least one day following the date
on which the Plan Administrator has received notification of such change.
Participant Contributions shall be suspended during any approved unpaid leave of
absence or any other period which is included in determining Hours of Service
under Section 1.20 and for which a Participant does not receive Compensation,
other than a leave which has a duration of less than one full payroll period.
Such Participant may not begin to contribute under Section 3.1 until the first
day of the next calendar month following the date on which he resumes receiving
Compensation.
3.3 Deferred Contributions.
(a) An Eligible Employee may elect, in the same manner and within the same
time periods set forth in Section 3.1 to have his Employer contribute Deferred
Contributions on his behalf.
(b) Subject to the limitations prescribed in Section 3.5 and Article 5,
each Employer shall contribute for each pay period on behalf of each of its
Participants who has made an election to have Deferred Contributions made on his
behalf a whole percentage not less than 1% nor more than 16% of the
Participant's Compensation per
-7-
pay period, as designated in such election. The amount of Compensation otherwise
payable for the period for which each such contributions is made shall be
reduced by the amount of such contributions by means of a payroll deduction each
pay period. In no event shall the total of Participant Contributions under
Section 3.1 and Deferred Contributions under this Section 3.3 be more than 16%
of the Participant's Compensation during any period in which such contributions
are made.
3.4 Changes in and Terminations of Deferred Contributions. Changes in and
termination of Deferred Contributions shall be made at the same time and in the
same manner and subject to the same limitations as prescribed for Participant
Contributions in Section 3.2.
3.5 Annual Limit on Deferred Contributions.
(a) Notwithstanding the provisions of Section 3.3, a Participant's Deferred
Contributions made pursuant to such Section for any calendar year shall not
exceed (i) for the Plan Year commencing on the Effective Date, $10,000 and (ii)
for each subsequent Plan Year, the dollar amount prescribed by section 402(g) of
the Code.
(b) If for any calendar year the Deferred Contributions to this Plan or the
aggregate of Deferred Contributions to this Plan plus amounts contributed under
other plans or arrangements described in sections 401(k), 403(b), 408(k) or
408(p) of the Code will exceed the limit imposed by subsection (a) of this
Section for the calendar year in which such contributions were made ("excess
deferred contributions"), such Participant shall, pursuant to such rules and at
such time following such calendar year as determined by the Company, be allowed
to submit a written request that the excess deferred contributions plus any
income and minus any loss allocable thereto be distributed to him. The amount of
any income or loss allocable to such excess Deferred Contributions shall be
determined pursuant to Treasury Regulation section 1.401(k)-1(f)(4)(ii)(C) and
(D). Such adjusted amount of excess deferred contributions shall be distributed
to the Participant no later than April 15 following the calendar year for which
such contributions were made. Notwithstanding the provisions of this paragraph,
any such excess deferred contributions shall be treated as "annual additions"
for purposes of Section 5.1.
ARTICLE 4
EMPLOYER CONTRIBUTIONS
4.1 Matching Contributions. For each payroll period during a Plan Year an
Employer shall contribute to the Plan on behalf of each Participant employed by
such Employer (other than a Participant subject to the suspension described in
Section 8.1(a)) 100% of the Deferred Contributions or Participant Contributions
made by and on behalf of the Participant that together do not exceed 6% of such
Participant's Compensation for such payroll period during a Plan Year. Any
contribution made pursuant to this Section shall be referred to hereinafter as a
"Matching Contribution."
4.2 Profit Sharing Contributions. In addition, each Employer, in its sole
discretion, may elect to contribute to the Plan on behalf of its Eligible
Employees, an amount determined by the Compensation and Nominating Committee of
the Board of Directors of the Company, in its sole discretion; provided,
however, that, for any Plan Year, in no event shall such amount be greater than
3% of the aggregate Compensation for such Plan Year of all Participants who
satisfy the eligibility requirements for an allocation of contributions
hereunder for such Plan Year, as described in Section 7.2(d). Any contribution
made pursuant to this Section shall be referred to hereinafter as a "Profit
Sharing Contribution."
-8-
ARTICLE 5
STATUTORY LIMITATIONS ON BENEFITS
5.1 Maximum Annual Additions Under Section 415 of the Code. Notwithstanding
any other provision of the Plan, the amounts allocated to each Participant's
Account for any Plan Year shall be limited so that--
(i) the aggregate annual additions for such Plan Year to the
Participant's Account in this Plan and in all other defined contribution
plans in which he is a participant shall not exceed the lesser of
(I) $30,000 (as adjusted for increases in the cost-of-living
pursuant to section 415(d) of the Code) and
(II) 25% of the Participant's compensation (as defined below) for
such Plan Year, and
(ii) for Plan Years commencing prior to January 1, 2000, the sum of
(A) and (B) below shall not exceed 1.
(A) The annual additions to the Participant's Account in the Plan
and the aggregate annual additions to the Participant's accounts in
all other defined contribution plans maintained by his Employer
(determined as of the close of the Plan Year) divided by the sum of
the lesser of--
(I) 125% of the maximum dollar amount which under section
415(c)(1)(A) of the Code could have been contributed on behalf of
the Participant to a defined contribution plan, and
(II) 35% of the Participant's annual compensation, as
determined separately for each of the Participant's years of
service.
(B) The aggregate projected annual benefit of the Participant
under all defined benefit plans maintained by his Employer (determined
as of the close of the Plan Year), divided by the lesser of--
(I) 125% of the maximum dollar limitation contained in
section 415(b)(1)(A) of the Code as adjusted for increases in the
cost of living as set forth in Regulations, and
(II) 140% of the average of the Participant's compensation
for the three consecutive calendar years during which his
compensation was the highest.
If as a result of a reasonable error in estimating a Participant's annual
compensation, a reasonable error in determining the amount of elective deferrals
that may be made by a Participant under section 415 of the Code or under other
limited facts and circumstances as determined by the Commissioner of Internal
Revenue, the annual additions to a Participant's Account exceeds the limitations
set forth in (a) above for any Plan Year, the amounts that would otherwise be
allocated to such Participant's account for such Plan Year under any other
defined contribution plans maintained by an Employer shall be reduced until the
amount to be allocated to the Participant's Account under the Plan is not so
limited or until the amounts allocated under all such other plans have been
reduced
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to zero, whichever occurs first. If after such reduction has been made the
amount to be allocated to a Participant's Account under the Plan for such year
would exceed the limitations set forth in this Section, then the Company shall
reduce the amounts to be allocated to such Participant's Account for such year
to the extent of the excess in the manner described below:
(a) first, by reducing the Participant's Participant Contributions and
corresponding Matching Contributions (if any) allocated to his Account,
plus earnings on such contributions, and distributing to the Participant
the amount by which his Participant Contributions and corresponding
Matching Contributions in which the Participant is vested (if any) have
been reduced, and earnings on such contributions. Any Matching
Contributions reduced pursuant to this paragraph in which a Participant is
not vested shall be forfeited; and
(b) second, by reducing the amount of the Participant's Deferred
Contributions and corresponding Matching Contributions (if any) allocated
to his Account, plus earnings on such contributions, and distributing to
the Participant the amount by which his Deferred Contributions and
corresponding Matching Contributions in which the Participant is vested (if
any) have been reduced, and earnings on such contributions. Any Matching
Contributions reduced pursuant to this paragraph in which a Participant is
not vested shall be forfeited.
If the combined annual benefit payable to a Participant would exceed the
limitation of paragraph (B) above, then the benefit payable under the defined
benefit plan shall be reduced in order to meet such limitation in the manner
provided in such defined benefit plan.
The "annual additions" for a Plan Year to a Participant's account in this
Plan and in any other defined contribution plan is the sum during such Plan Year
of--
(i) the amount of Employer contributions allocated to such
Participant's accounts,
(ii) the amount of forfeitures allocated to such Participant's
accounts,
(iii) the amount allocated to any individual medical benefit account
(as defined in section 415(l) of the Code) maintained on behalf of the
Participant, and
(iv) the amount of contributions by the Participant to such Plan but
excluding any rollover contribution made to such Plan.
For purposes of this Section, the "limitation year" shall be the Plan Year,
the terms "compensation," "defined contribution plan," "defined benefit plan"
and "year of service" shall have the meanings set forth in section 415 of the
Code and the Regulations promulgated thereunder, and a Participant's Employer
shall include entities that are members of the same controlled group (within the
meaning of section 414(b) of the Code as modified by section 415(h) of the Code)
or affiliated service group (within the meaning of section 414(m) of the Code)
as his Employer or under common control (within the meaning of section 414(c) of
the Code as modified by section 415(h) of the Code) with his Employer or such
entities.
5.2 Limitations on Contributions for Highly Compensated Employees.
(a) Actual Deferral Percentage Test Imposed by Section 401(k)(3) of the
Code. Notwithstanding the provisions of Section 3.3, if the Deferred
Contributions made pursuant to such Section for a Plan Year fail to satisfy both
of the tests set forth in paragraphs (1) and (2) of this subsection, the
adjustments prescribed in paragraph (1) of subsection (e) of this Section shall
be made.
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(1) The HCE average deferral percentage does not exceed the product of
the NHCE average deferral percentage multiplied by 1.25.
(2) The HCE average deferral percentage (i) does not exceed the NHCE
average deferral percentage by more than two percentage points, and (ii)
does not exceed two times the NHCE average deferral percentage.
(b) Actual Contribution Percentage Test Imposed by Section 401(m) of the
Code. Notwithstanding the provisions of Sections 3.1 and 4.1, if the aggregate
of the Participant Contributions and Matching Contributions pursuant to Sections
3.1 and 4.1, respectively, fail to satisfy both of the tests set forth in
paragraphs (1) and (2) of this subsection, the adjustments prescribed in
paragraph (2) of subsection (e) of this Section shall be made.
(1) The HCE average contribution percentage does not exceed the
product of the NHCE average contribution percentage multiplied by 1.25.
(2) The HCE average contribution percentage (i) does not exceed the
NHCE average contribution percentage by more than two percentage points,
and (ii) does not exceed two times the NHCE average contribution
percentage.
(c) Aggregate Limit on Contributions. Notwithstanding anything herein to
the contrary, if the sum of the HCE average deferral percentage (as determined
under paragraph (1) of subsection (e) of this Section after making the
adjustments required by such paragraph for the Plan Year) and the HCE average
contribution percentage (as determined under paragraph (2) of subsection (e) of
this Section after making the adjustments required by such paragraph for the
Plan Year) exceeds, or in the judgment of the Company is likely to exceed, the
aggregate limit for such Plan Year, the adjustments prescribed in paragraph (3)
of subsection (e) of this Section shall be made.
(d) Definitions and Special Rules. For purposes of this Section, the
following definitions and special rules shall apply:
(1) The "actual deferral percentage test" refers collectively to the
tests set forth in paragraphs (1) and (2) of subsection (a) of this Section
relating to Deferred Contributions. The actual deferral percentage test
shall be satisfied if either of such tests are satisfied.
(2) The "HCE average deferral percentage" for a Plan Year is a
percentage determined for the group of Eligible Employees who are eligible
to make Deferred Contributions for such Plan Year and who are highly
compensated employees for such Plan Year. Such percentage shall be equal to
the average of the ratios, calculated separately for each such Eligible
Employee to the nearest one-hundredth of one percent, of the Deferred
Contributions for the benefit of such Eligible Employee for such Plan Year
(if any) to the total compensation for such Plan Year paid to such
Employee.
(3) The "NHCE average deferral percentage" for a Plan Year is a
percentage determined for the group of Eligible Employees who were eligible
to make Deferred Contributions for the prior Plan Year and who were not
highly compensated employees for such prior Plan Year. Such percentage
shall be equal to the average of the ratios, calculated separately for each
such Eligible Employee to the nearest one-hundredth of one percent, of the
Deferred Contributions for the benefit of such Eligible Employee for such
prior Plan Year (if any) to the total compensation for such prior Plan Year
paid to such Eligible Employee. "
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(4) The "actual contribution percentage test" refers collectively to
the tests set forth in paragraphs (1) and (2) of subsection (b) of this
Section relating to Participant Contributions and Matching Contributions.
The actual contribution percentage test shall be satisfied if either of
such tests are satisfied.
(5) The "HCE average contribution percentage" for a Plan Year is a
percentage determined for the group of Eligible Employees who are eligible
to make Participant Contributions for such Plan Year, or are eligible to
make Deferred Contributions and share in an allocation of corresponding
Matching Contributions (if any) for such Plan Year, and who are highly
compensated employees for such Plan Year. Such percentage shall be equal to
the average of the ratios, calculated separately for each such Employee to
the nearest one-hundredth of one percent, of the sum of the Participant
Contributions made by such Eligible Employee for such Plan Year (if any)
and the Matching Contributions made for the benefit of such Eligible
Employee (if any) for such Plan Year to the total compensation for such
Plan Year paid to such Eligible Employee.
(6) The "NHCE average contribution percentage" for a Plan Year is a
percentage determined for the group of Eligible Employees who were eligible
to make Participant Contributions for the prior Plan Year, or were eligible
to make Deferred Contributions and share in an allocation of corresponding
Matching Contributions (if any) for the prior Plan Year, and who were not
highly compensated employees for such prior Plan Year. Such percentage
shall be equal to the average of the ratios, calculated separately for each
such Eligible Employee to the nearest one-hundredth of one percent, of the
sum of the Participant Contributions made by such Eligible Employee for
such prior Plan Year (if any) and the Matching Contributions made for the
benefit of such Eligible Employee for such prior Plan Year (if any) to the
total compensation for such prior Plan Year paid to such Eligible Employee.
"
(7) The "aggregate limit" shall equal the greater of (A) the sum of
(i) 1.25 times the greater of the NHCE average deferral percentage or the
NHCE average contribution percentage plus (ii) the lesser of (a) the sum of
two percentage points and the lesser of the NHCE average deferral
percentage or the NHCE average contribution percentage and (b) 200% of the
lesser of the NHCE average deferral percentage or the NHCE average
contribution percentage; or (B) the sum of (i) 1.25 times the lesser of the
NHCE average deferral percentage or the NHCE average contribution
percentage plus (ii) two percentage points plus the greater of (a) the NHCE
average deferral percentage or (b) the NHCE average contribution
percentage, but not greater than 200% of the greater of (a) and (b) above.
(8) A "highly compensated employee" is, for a Plan Year, any Employee
who is (a) a 5%-owner (as determined under section 416(i) of the Code) at
any time during the Plan Year or the preceding Plan Year or (b) is paid
compensation in excess of $80,000 (as adjusted for increases in the cost of
living in accordance with section 414(q)(1)(B)(ii) of the Code) from an
Employer for the prior Plan Year. If the Committee so elects for a Plan
Year, the Employees taken into account under clause (b) above shall be
limited to those Employees who were members of the "top-paid group" (as
defined in section 414(q)(3) of the Code) for the preceding Plan Year. Any
such election shall be included in the written minutes of the Committee.
(9) The term "compensation" shall have the meaning set forth in
section 414(s) of the Code or, in the discretion of the Company, any other
meaning in accordance with the Code for these purposes.
(10) If the Plan and one or more other plans of the Employer to which
elective deferrals or qualified nonelective contributions (as such term is
defined in section 401(m)(4)(C) of the Code) are made are treated as one
plan for purposes of section 410(b) of the Code, such plans shall be
treated as one plan for purposes of this Section.
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For the initial Plan Year commencing on the Effective Date, for purposes of
determining the NHCE average deferral percentage and the NHCE average
contribution percentage pursuant to the definitions of such terms contained in
paragraphs (3) and (6) of this subsection, respectively, the Committee shall
apply such definitions by substituting the phrase "for the Plan Year" for the
phrase "for the prior Plan Year" each time such phrase appears therein;
provided, however, that, if either or both of the NHCE average deferral
percentage or the NHCE average contribution percentage is less than 3% for such
initial Plan Year after applying such definition, then each or both such
percentages shall be deemed to be equal to 3% for such initial Plan Year. For
any subsequent Plan Year, the Committee may, to the extent permitted by
applicable U.S. Treasury Regulations, elect to apply the definitions contained
in paragraphs (3) and (6) of this subsection, respectively, by substituting the
phrase "for the Plan Year" for the phrase "for the prior Plan Year" each time
such phrase appears in such paragraphs.
(e) Adjustments to Comply with Limits. This subsection sets forth the
adjustments and correction methods which shall be used to comply with the actual
deferral percentage test under section 401(k)(3) of the Code, and the actual
contribution percentage test under section 401(m) of the Code.
(1) Adjustments to Comply with Actual Deferral Percentage Test. (A)
Adjustment to Deferred Contributions of Highly Compensated Employees. The
Company shall cause to be made such periodic computations as it shall deem
necessary or appropriate to determine whether the actual deferral
percentage test is satisfied during a Plan Year, and, if it appears to the
Company that such test will not be satisfied, the Company shall take such
steps as it deems necessary or appropriate to adjust the Deferred
Contributions made pursuant to Section 3.3 for all or a portion of such
Plan Year on behalf of each Participant who is a highly compensated
employee to the extent necessary in order for the actual deferral
percentage test to be satisfied, as described herein. The Deferred
Contributions made on behalf of each Participant who is a highly
compensated employee and whose actual dollar amount of Deferred
Contributions is the highest shall be reduced until such dollar amount
equals the greater of (A) the largest dollar amount such that the actual
deferral percentage test shall be satisfied and (B) the next highest actual
dollar amount of Deferred Contributions made for such Plan Year by any
Participant who is a highly compensated employee. If further reductions are
necessary, then such contributions on behalf of each Participant who is a
highly compensated employee and whose actual dollar amount of Deferred
Contributions, after the reduction described in the preceding sentence, is
the highest shall be reduced in accordance with the previous sentence. Such
reductions shall continue to be made to the extent necessary so that the
actual deferral percentage test is satisfied.
(B) Corrective Distributions. The adjustment described in subparagraph
(1)(A) of this subsection (e) shall be made from time to time during the
Plan Year with respect to Deferred Contributions made pursuant to Section
3.3 subsequent to the time of each such adjustment as determined by the
Company. If within 2 1/2 months after the close of a Plan Year the Company
determines that, notwithstanding any adjustments made during such Plan
Year, the actual deferral percentage test has not been satisfied for such
Plan Year, the Company shall within such 2 1/2 month period make additional
reductions pursuant to subparagraph (1)(A) of this subsection (e) so that
the actual deferral percentage test is satisfied and, at the Committee's
discretion, either (A) treat the amount of such reductions as Participant
Contributions made pursuant to Section 3.1 shall be forfeited or (B)
distribute no later than the last day of the subsequent Plan Year to such
Participant (I) the amount of such reductions plus any income and minus any
loss allocable thereto and (II) any corresponding Matching Contributions
related thereto plus any income and minus any loss allocable thereto in
which the Participant would be vested if he had terminated employment on
the last day of the Plan Year for which such contributions were made (or
earlier if any such Participant actually terminated service at any earlier
date), and any corresponding Matching Contributions in which the
Participant would not be vested plus any income and minus any loss
allocable thereto shall be forfeited. The amount of any income or loss
allocable to any such reductions, including income or loss attributable to
the gap period (as defined in Regulations), to be so distributed or
forfeited shall be determined pursu-
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ant to applicable Regulations. The amount of Deferred Contributions (and
income or loss allocable thereto) to be distributed to a Participant
hereunder shall be reduced by any Deferred Contributions previously
distributed to such Participant pursuant to Section 3.5(b) in order to
comply with the limitations of section 402(g) of the Code. The unadjusted
amount of any such reductions so distributed shall be treated as "annual
additions" for purposes of Section 5.1 relating to the limitations under
section 415 of the Code.
(2) Adjustments to Comply with the Actual Contribution Percentage
Test. (A) Adjustment to Participant Contributions and Matching
Contributions of Highly Compensated Employees. If, after taking into
account the distribution or forfeiture of Matching Contributions made on
behalf of highly compensated employees pursuant to subparagraph (1)(B)
above, the Company determines that the actual contribution percentage test
shall not be satisfied for a Plan Year, then the Company shall adjust the
Participant Contributions and Matching Contributions made pursuant to
Sections 3.1 and 4.1 for all or a portion of such Plan Year on behalf of
each Participant who is a highly compensated employee to the extent
necessary in order for the actual contribution percentage test to be
satisfied, as described herein. Any reduction prescribed by this
subparagraph shall be applied to a Participant's Participant Contributions
first, and shall be applied to his Matching Contributions only after
reduction of his Participant Contributions for such Plan Year to zero. The
Participant Contributions, and if applicable, Matching Contributions made
on behalf of each Participant who is a highly compensated employee and
whose actual dollar amount of Participant Contributions and Matching
Contributions is the highest shall be reduced until such dollar amount
equals the greater of (A) the largest dollar amount such that the actual
contribution percentage test shall be satisfied or (B) the next highest
actual dollar amount of Participant Contributions and Matching
Contributions made for such Plan Year for any Participant who is a highly
compensated employee. If further reductions are necessary, then such
contributions on behalf of each Participant who is a highly compensated
employee and whose actual dollar amount of Participant Contributions and
Matching Contributions, after the reduction described in the preceding
sentence, is the highest shall be reduced in accordance with the previous
sentence. Such reductions shall continue to be made to the extent necessary
so that the actual contribution percentage test is satisfied.
(B) Corrective Distributions. With respect to the Participant
Contributions and, if applicable, Matching Contributions to be reduced on
behalf of Participants who are highly compensated employees as described in
subparagraph (2)(A) above, the Company shall, no later than 2 1/2 months
after the end of the Plan Year, distribute the portion of such Participant
Contributions, and if applicable, Matching Contributions, plus any income
and minus any loss allocable thereto in which the Participant would be
vested if he had terminated employment on the last day of the Plan Year for
which such contributions were made (or earlier if any such Participant
actually terminated service at any earlier date), and the portion of such
Matching Contributions in which the Participant would not be vested plus
any income and minus any losses applicable thereto shall be forfeited. The
amount of any income or loss allocable to any such reductions, including
income or loss attributable to the gap period (as defined in Regulations),
to be so distributed or forfeited shall be determined pursuant to
applicable Regulations. The unadjusted amount of any such reductions so
distributed shall be treated as "annual additions" for purposes of Section
5.1 relating to the limitations under section 415 of the Code.
(3) Adjustments to Comply with the Aggregate Limit. If, after making
the adjustments required by paragraphs (1) and (2) of this subsection for a
Plan Year, the Company determines that the sum of the HCE average deferral
percentage and the HCE average contribution percentage exceeds the
aggregate limit for such Plan Year, the Company shall within 2 1/2 months
after the close of such Plan Year adjust the Participant Contributions made
pursuant to Section 3.1 for such Plan Year on behalf of each Participant
who is a highly compensated employee to the extent necessary to eliminate
such excess. Such adjustment shall be effected in the same manner described
in paragraph (2) of this subsection relating to
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reductions made to satisfy the actual contribution percentage test. In the
event that further reductions are necessary, the Company shall within 2 1/2
months after the close of such Plan Year adjust the Deferred Contributions
made pursuant to Section 3.3 for such Plan Year on behalf of each
Participant who is a highly compensated employee to the extent necessary to
eliminate such excess. Such adjustment shall be effected in the same manner
described in paragraph (1) of this subsection relating to reductions made
to satisfy the actual deferral percentage test. In the event that further
reductions are necessary, the Company shall within 2 1/2 months after the
close of such Plan Year adjust the Matching Contributions made pursuant to
Section 4.1 for such Plan Year on behalf of each Participant who is a
highly compensated employee to the extent necessary to eliminate such
excess. Such adjustment shall be effected in the same manner described in
paragraph (2) of this subsection relating to reductions made to satisfy the
actual contribution percentage test.
(f) Designation of Qualified Nonelective Contributions. Each Plan Year, the
Company may, to the extent permitted by the Secretary of the Treasury, designate
an amount of any Employer contributions allocated to Participant accounts on
behalf of any group of Participants who are not highly compensated employees to
be treated as "qualified nonelective contributions" within the meaning of
section 401(m)(4)(C) of the Code for purposes of applying the actual deferral
percentage test and the actual contribution percentage test. Any such Employer
contributions designated as qualified nonelective contributions and earnings
related thereto shall be accounted for separately by the Trustee and shall be
distributable pursuant to the provisions of the Plan concerning distributions of
Matching Contributions (but no earlier than the Participant's separation from
service or death).
5.3 Limitation on Contributions.
(a) Deductibility. Notwithstanding anything contained in the Plan to the
contrary, contributions made to the Plan under Section 3.3 and Article 4 for any
Plan Year shall not exceed the maximum amount for which a deduction is allowable
to such Employer for federal income tax purposes on account of such
contributions for the fiscal year of the Employer which ends with or within a
Plan Year. Any contribution which is determined by the Internal Revenue Service
to be nondeductible by an Employer shall be returned to such Employer within one
year following the date on which such deduction is disallowed.
(b) Mistake of Fact. Any contribution made by an Employer by reason of a
good faith mistake of fact shall, upon the request of such Employer, be returned
by the Trustee to such Employer. The Employer's request and the return of any
such contribution must be made within one year after such contribution was
mistakenly made. The amount to be returned to the Employer pursuant to this
paragraph shall be the excess of the amount contributed over the amount which
would have been contributed had there not been a mistake of fact. If the return
to the Employer of the amount attributable to the mistaken contribution would
cause the amount credited to any Participant's Account as of the date such
amount is to be returned (as if such date were a Valuation Date) to be reduced
to less than what would have been the amount credited to such Account as of such
date had the mistaken amount not been contributed, the amount to be returned to
the Employer shall be limited so as to avoid such a reduction.
ARTICLE 6
TRUST
A Trust shall be created by the execution of a Trust Agreement between the
Company (acting on behalf of the Employers) and the Trustee. All contributions
under the Plan shall be made to the Trustee. The Trustee shall hold all property
received by it and invest the income and allocate the losses from all property
held by it on behalf of the Participants collectively in accordance with the
provisions of the Plan and the Trust Agreement. The
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Trustee shall make distributions from the Trust Fund at such time or times to
such person or persons (or such qualified plans or individual retirement
accounts) and in such amounts as the Committee shall direct in accordance with
the Plan.
ARTICLE 7
INVESTMENT ELECTIONS AND ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
7.1 Separate Accounts and Investment Elections.
(a) Accounts. The Committee shall establish and maintain, or cause the
Trustee or such other agent as the Committee may select to establish and
maintain, a separate Account for each Participant. Such Accounts shall be solely
for accounting purposes and no segregation of assets of the Trust among the
separate Accounts shall be required. Each Account shall consist of (a) if a
Participant is making or has made Participant Contributions, a Participant
Contribution Account, (b) if Deferred Contributions are being made or have been
made for a Participant, a Deferred Contribution Account, (c) if Matching
Contributions are being made or have been made for a Participant, a Matching
Contribution Account (d) if Profit Sharing Contributions are being made or have
been made, a Profit Sharing Account, and (e) if a Participant has made a
rollover contribution, a Rollover Account.
(b) Investment Funds. (1) In General. The Committee shall establish and
maintain, or shall cause to be established and maintained, three or more
investment funds, the type and number of such funds to be determined by the
Company, to which all amounts contributed under the Plan shall be credited
according to each Participant's investment elections pursuant to subsection (c)
of this Section. The Trustee shall establish and maintain, or cause to be
established or maintained, investment subaccounts with respect to each such
investment fund to which amounts contributed under the Plan shall be credited
according to each Participant's investment elections pursuant to subsection (c)
of this Section. All such subaccounts shall be for accounting purposes only, and
there shall be no segregation of assets within the investment funds among the
separate subaccounts.
(2) Company Stock Fund. As soon as practicable after the Effective Date,
the Committee shall establish or shall cause to be established a Company Stock
Fund. The assets of the Company Stock Fund shall be invested primarily in shares
of Company Stock and short-term liquid investments in a commingled money-market
fund maintained by the Trustee, to the extent determined by the Trustee to be
necessary to satisfy such fund's cash needs. Each Participant's proportional
interest in the Company Stock Fund shall be represented by units of
participation, each such unit representing a proportionate interest in all the
assets of such fund. In making purchases or sales of shares of Company Stock for
the Company Stock Fund, the Trustee shall purchase or sell shares of Company
Stock in the manner and in the proportion as prescribed by the Company in
accordance with rules adopted for such purpose.
(3) Bestfoods Stock Fund. As soon as practicable after the Effective Date,
the Committee shall establish or shall cause to be established the Bestfoods
Stock Fund which shall consist solely of the shares of common stock of Bestfoods
(formerly known as CPC International Inc.) ("Bestfoods Stock") received by the
Bestfoods Stock Fund in connection with the spin-off of the Company by CPC
International Inc. This fund may not receive any new investments or transfers
from other funds. Participants may transfer amounts from this fund to any other
fund at any time, but once any such amounts are transferred to another fund,
they may not be transferred back into the Bestfoods Stock Fund. Dividends, if
any, on Bestfoods common stock shall be reinvested by the Trustee in the
Fidelity Managed Income Portfolio II, or such other investment fund designated
by the Committee for this purpose. Unless earlier, as determined by the
Committee, effective December 31, 2000, this fund shall terminate, and all
amounts invested in the Bestfoods Stock Fund on such date shall be transferred
to applica-
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ble Participant accounts in the Fidelity Managed Income Portfolio II or such
other investment fund designated by the Committee for this purpose, in
accordance with the procedures of subsection (c) below.
(c) Investment Elections. Each Participant shall make an investment
election which shall apply to the investment of his Account balance and any
earnings thereon and shall make an election which shall apply to future
contributions which will be made to such Participant's Account pursuant to
Sections 3.1, 3.3, 4.1 and 4.2 and to the loan payments made pursuant to Section
8.2(e). Such election shall specify that such contributions be invested either
(i) wholly in one fund maintained pursuant to subsection (b) or (ii) divided
among such funds in multiples established by the Committee from time to time.
During any period in which no direction as to the investment of a Participant's
Account is on file with the Committee, contributions made by him or on his
behalf to the Plan shall be invested in such manner as the Committee shall
determine.
With respect to the allocation of the Participant's existing Account
balances among the available investment funds, a Participant may elect to change
his investment election effective as of any Valuation Date. The Committee may
prescribe uniform rules which shall govern the time by which any such election
shall be made in order to be effective for a Valuation Date. A Participant may
change his investment elections only once during any one day.
With respect to the investment of future contributions to the Participant's
Account among the available investment funds, a Participant may elect to change
his investment election effective as of the first day of the payroll period
which is at least one day following the date on which the Plan Administrator
receives notification of such change. The Committee may prescribe uniform rules
which shall govern the date and time by which any such election shall be made in
order to be effective for a calendar month. Such an election may be made as of
any Valuation Date, provided that in the event a Participant makes more than one
election with respect to a calendar month, the last such election made by the
Participant shall control.
(d) Applicability. For purposes of this Section, the term "Participant"
shall include any Beneficiary of a deceased Participant and any alternate payee
under a qualified domestic relations order on whose behalf an account has been
established under this Plan.
7.2 Allocation of Contributions and Withdrawals to Accounts.
(a) Allocations of Deferred Contributions. Twice per calendar month (or at
such other frequently prescribed by the Committee), the Committee shall deposit
the Deferred Contributions made via payroll reduction during such semi-monthly
period (or other period prescribed by the Committee) with the Trustee. Such
contributions shall be allocated to the Deferred Contribution Account of each
Participant on whose behalf such contributions were made as soon as practicable
after such date.
(b) Allocations of Participant Contributions. Twice per calendar month (or
at such other frequency prescribed by the Committee), the Committee shall
deposit the Participant Contributions made during such semi-monthly period (or
other period prescribed by the Committee) with the Trustee. Such contributions
shall be allocated to the Participant Contribution Account of each Participant
who made such contributions as soon as practicable after such date.
(c) Allocations of Matching Contributions. Once per calendar month (or at
such other frequency prescribed by the Committee), Matching Contributions made
during such month (or other period prescribed by the Committee) shall be
deposited with the Trustee. Such contributions shall be allocated to the
Matching Contribution Account of each Participant for whom such contributions
are made as soon as practicable after such date.
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(d) Allocations of Profit Sharing Contributions. As of the end of each Plan
Year, after the adjustments described in Section 7.3 have been made, the
Committee shall allocate the Profit Sharing Contributions, if any, made since
the preceding Plan Year to the Profit Sharing Account of each Participant who
(i) is an Employee on the last day of such Plan Year and (ii) has completed at
least 1,000 Hours of Service during such Plan Year, or whose employment with an
Employer terminated during such Plan Year on account of death, retirement or
disability. For purposes of the foregoing sentence "retirement" shall mean a
Participant's termination of employment after attaining age 55 with at least 10
Years of Service or a Participant's termination of employment after attaining
age 65 without regard to the Participant's Years of Service. Such Profit Sharing
Contributions shall be allocated on a pro-rata basis to each Participant based
on each such Participant's Compensation during such Plan Year.
(e) Allocations of Rollover Contributions. As soon as administratively
practicable after a Participant delivers a rollover contribution to the
Committee, the Committee shall deposit such contribution with the Trustee. Such
contribution shall be allocated to the Participant's Rollover Account as soon as
practicable after such date.
(f) Allocation of Loan Repayments. Twice per calendar month (or at such
other frequency prescribed by the Committee), the Committee shall deposit the
loan repayments during such semi-monthly period (or other period prescribed by
the Committee) with the Trustee. Such repayments shall be allocated to the
Deferred Contribution Account or Rollover Account, as applicable, of each
Participant who made such repayments as soon as practicable after such date. The
Committee shall reduce the Participant's loan subaccount (as defined in Section
8.2(e) by the principal portion of such loan repayments.
(g) Allocation of Withdrawals. As of each Valuation Date, after making the
adjustments described in Section 7.3, a Participant's Account shall be reduced
by the amount of any withdrawals or distributions from such Account made after
the immediately preceding Valuation Date.
(h) Allocation of Forfeitures. As of the end of each Plan Year, after
making the adjustments described in Section 7.3, forfeitures arising under this
Plan shall be applied to fund Employer Matching Contributions.
7.3 Valuation of Participants' Accounts.
(a) Value of Investment Funds. Except for the Company Stock Fund and the
Bestfoods Stock Fund, as of each Valuation Date, the value of the portion of
Participants' Accounts that is invested in each investment fund shall be
determined based upon the number of units invested in each such fund and the net
asset value of each such fund, as determined by the Trustee.
(b) Valuation of Portion of Accounts Invested in Company Stock. As soon as
practicable after each Valuation Date, the value of Participants' Accounts that
is invested in Company Stock, including any accumulated cash, shall be
determined by the Trustee, taking into account any cash dividends, shares
received as a stock split or dividend or as a result of a reorganization or
other recapitalization of the Company, or other distributions paid to
shareholders of Company Stock, since the preceding Valuation Date.
(c) Valuation of Portion of Accounts Invested in Bestfoods Stock. As soon
as practicable after each Valuation Date, the value of Participants' Accounts
that is invested in Bestfoods Stock, including any accumulated cash, shall be
determined by the Trustee, taking into account any cash dividends, shares
received as a stock split or dividend or as a result of a reorganization or
other recapitalization of Bestfoods, or other distributions paid to shareholders
of Bestfoods Stock since the preceding Valuation Date.
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(d) Value of Total Account. The valuation of a Participant's Account as of
any Valuation Date shall be the sum of the values of his Participant
Contribution Account, Deferred Contribution Account, Matching Contribution
Account, Profit Sharing Account and Rollover Account. A Participant's Account
shall be further reduced or increased in such manner as the Committee determines
in its discretion to be necessary to provide an equitable allocation of any
change in the value of the net worth of the Trust Fund.
7.4 Correction of Error. If it shall come to the attention of the Committee
that an error has been made in any of the allocations prescribed by this Plan,
appropriate adjustment shall be made to the Accounts of all Participants and
Beneficiaries that are affected by such error, except that no adjustment need be
made with respect to the Account of any Participant which has been distributed
in full prior to the discovery of such error.
ARTICLE 8
WITHDRAWALS AND LOANS
8.1 ithdrawals Prior to Termination of Employment.
(a) Withdrawals from Participant Contribution Account. A Participant who is
an Employee may elect to withdraw all or any portion of the balance of his
Participant Contribution Account.
Amounts withdrawn from a Participant's Participant Contribution Account
shall be debited (i) first from Participant Contributions the Participant made
prior to January 1, 1987, (ii) next from Participant Contributions made on or
after January 1, 1987 but prior to the date which is two years prior to the date
of withdrawal (plus earnings in the proportions prescribed by section 72 of the
Code) and (iii) finally, from Participant Contributions made during the two-year
period ending on the date of withdrawal (plus earnings in the proportions
prescribed by section 72 of the Code). If a Participant withdraws any amounts
described in clause (iii) of the preceding sentence which were matched by
Matching Contributions as described in Section 4.1, the Participant shall be
suspended from receiving allocations of Matching Contributions for a period of 6
months from the date such amount is withdrawn. Notwithstanding the foregoing, in
the case of a Participant who makes a withdrawal pursuant to this subsection
while on an approved leave of absence, such 6-month suspension shall begin on
the first day of the payroll period following the date on which he resumes
receiving Compensation.
(b) Withdrawals After Age 59 1/2. Upon attaining age 59 1/2, a Participant
who is an Employee may withdraw all or any part of the balances of his Deferred
Contribution Account and Rollover Account. Amounts withdrawn pursuant to this
subsection shall be debited first from the Participant's Rollover Account, and
next from the Participant's Deferred Contribution Account.
(c) Hardship Withdrawals. A Participant who is an Employee may, prior to
attainment of age 59 1/2, withdraw a portion of the balance of the Participant's
Deferred Contribution Account, but only on account of a financial hardship. The
minimum amount that may be withdrawn due to financial hardship is the lesser of
$500 and the aggregate of the balance of a Participant's Deferred Contribution
Account (excluding any earnings credited to such account after December 31,
1988), and the documented need for a hardship withdrawal must be at least $500.
No amount may be withdrawn from a Participant's Matching Contribution Account or
Profit Sharing Account under this subsection on account of financial hardship.
No financial hardship withdrawal shall be permitted (1) while any amounts remain
in such Participant's Participant Contribution Account or Rollover Account or
(2) if the Participant is currently eligible to borrow from the Plan pursuant to
Section 8.2, unless the Participant attests that making loan payments on amounts
borrowed from the Plan will cause a financial hardship.
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Financial hardship shall be deemed to exist only if the distribution is
necessary because of immediate and heavy financial need of the Participant under
the following circumstances:
(1) to pay medical expenses described in section 213(d) of the Code
incurred by the Participant, the Participant's spouse or any dependents of
the Participant (as defined in section 152 of the Code) or necessary for
these persons to obtain medical care described in section 213(d) of the
Code;
(2) to pay costs directly related to the purchase of the Participant's
principal residence (excluding periodic mortgage payments);
(3) to pay (or reimburse the Participant for) tuition, room and board,
and related educational fees for 12 months of post-secondary education of
the Participant, the Participant's spouse, children or dependents (as
defined in section 152 of the Code); or
(4) to prevent eviction from, or foreclosure on, the Participant's
principal residence.
For purposes of this subsection, a distribution shall be deemed necessary
to satisfy an immediate and heavy financial need only if:
(1) the Committee receives from the Participant a representation that
the need cannot be relieved :
(i) through reimbursement or compensation by insurance or
otherwise;
(ii) by liquidation of the Participant's assets;
(iii) by cessation of Deferred Contributions and Participant
Contributions under the Plan; or
(iv) by other distributions or nontaxable loans (at the time of
the loan) from plans maintained by the Company or any other Employer,
or by borrowing from commercial sources on reasonable commercial
terms, in an amount sufficient to satisfy the need, and
(2) the Committee reasonably relies on the accuracy of such
representation. The Committee may rely upon the Participant's
representation unless it has actual knowledge to the contrary.
(3) For purposes of paragraph (1) above, a need cannot reasonably be
relieved by one of the actions listed therein if the effect would be to
increase the amount of the need.
In no event may the amount withdrawn pursuant to this subsection (c) exceed
the amount of the Participant's Deferred Contributions not previously withdrawn
plus the income credited on the Participant's Deferred Contributions as of
December 31, 1988. The Committee shall determine whether the criteria for
hardship withdrawal have been satisfied and has the right to refuse a hardship
withdrawal request if it finds that such criteria have not been satisfied.
(d) Rollover Withdrawals. While an Employee, a Participant may at any time
withdraw all or any portion of the balance of his Rollover Account.
(e) Other Withdrawals. A Participant who, on April 1, 1979, had an account
balance under the CPC Plan may elect to withdraw (i) the portion of his
Participant Contribution Account which is equal to the
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value of such account on April 1, 1979 plus the value of amounts attributable to
any Employer contributions (other than elective deferrals described in section
401(k) of the Code) made during the two-year period ending on April 1, 1979
reduced by (ii) the aggregate amount of prior withdrawals made on or after April
1, 1979 of such contributions. In no event shall a withdrawal made pursuant to
this subsection exceed (i) with respect to portion attributable to Participant
Contributions, the total balance of the Participant's Participant Contribution
Account and (ii) with respect to the remaining portion, the total balance of the
Participant's Matching Contribution Account and Profit Sharing Account. If a
Participant withdraws any amount pursuant to this subsection, the Participant
shall be suspended from receiving allocations of Matching Contributions for a
period of 9 months from the date such amount is withdrawn. Notwithstanding the
foregoing, in the case of a Participant who makes a withdrawal pursuant to this
subsection while on an approved leave of absence, such 9-month suspension shall
begin on the first day of the payroll period following the date on which he
resumes receiving Compensation.
(f) Miscellaneous Rules Relating to Withdrawals. A Participant may request
a withdrawal pursuant to this Section in the manner prescribed by the Committee;
provided that a Participant may make only one such withdrawal during any six
consecutive month period. For purposes of determining the balance a
Participant's accounts under the Plan for purposes of this Section, such
balances shall be valued as of the date the Participant's request for a
withdrawal is received by the Committee in acceptable form and substance, or
such other date prescribed by the Committee in conjunction with the Plan's
recordkeeper (such date to be applied in a uniform manner), and shall be paid
within a reasonable period of time thereafter. All withdrawals under this
Section shall be paid in cash. For purposes of this subsection, the value of a
Participant's accounts shall be determined by excluding the portion credited to
the Participant's loan subaccount under Section 8.2(e), if any. To the extent
permitted by the Committee, a Participant who elects a withdrawal under this
Section shall designate the extent to which any such withdrawal shall be made
from the various investment funds in which his account balance is invested, but
absent any such designation such withdrawal shall be made from such funds as the
Committee shall, in its sole discretion, determine.
8.2 Loans to Participants.
(a) Making of Loans. Subject to the restrictions set forth in this Section,
the Committee shall establish a loan program whereby any Participant who is an
Employee may request, by prior written application to the Committee, to borrow
funds from the Plan. The principal balance of such loan shall be not less than
$1,000 and shall not exceed the lesser of (1) 50% of the aggregate of the
Participant's vested Account balance under the Plan as of the Valuation Date
coinciding with or immediately preceding the day on which the loan is made, and
(2) $50,000, reduced by the excess, if any, of the highest outstanding loan
balance of the Participant under all plans maintained by the Employer during the
period of time beginning one year and one day prior to the date such loan is to
be made and ending on the date such loan is to be made over the outstanding
balance of loans from all such plans on the date on which such loan was made.
(b) Restrictions. No Participant may have more than two loans outstanding
at any time. Amounts equal to any such loan (or loans, as the case may be) shall
be debited first from the Participant's Deferred Contribution Account to the
extent thereof, then from his Rollover Account, if any, to the extent thereof,
then from contributions to his Participant Contribution Account which are
attributable to Participant Contributions made after December 31, 1986 and which
have not been matched by Matching Contributions, next from contributions to his
Participant Contribution Account which are attributable to Participant
Contributions made after December 31, 1986 and which have been matched by
Matching Contributions, next from contributions to his Participant Contribution
Account which are attributable to Participant Contributions made prior to
January 1, 1987 to the extent thereof, then from his Matching Contribution
Account to the extent thereof, and then from his Profit Sharing Account, to the
extent thereof. Such amounts shall be debited from the investment fund or funds
as the Committee shall, in its sole discretion, determine. Any loan approved by
the Committee pursuant to the preceding paragraph (a) shall be made only upon
the following terms and conditions:
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(1) The period for repayment of the loan shall be arrived at by mutual
agreement between the Committee and the Participant, but such period shall
not exceed five years from the date of the loan; provided, however, that if
the purpose of the loan, as determined by the Committee, is to acquire any
dwelling unit that within a reasonable period of time is to be used as the
principal residence of the Participant, then such period for repayment
shall not exceed fifteen years. Such loan may be prepaid, without penalty,
by delivery to the Committee of cash in an amount equal to the entire
unpaid balance of such loan. Any loan is due in full upon termination of
employment.
(2) No loan shall be made unless the Participant consents to have such
loan repaid in substantially equal installments deducted from the regular
payments of the Participant's compensation during the term of the loan.
Notwithstanding the foregoing, loan repayments under this Plan may be
suspended with respect to a Participant in Military Service to the extent
required by USERRA and in accordance with section 414(u)(4) of the Code.
(3) Each loan shall be evidenced by the Participant's collateral
promissory note for the amount of the loan, with interest, payable to the
order of the Trustee, and shall be secured by an assignment of a portion of
the Participant's vested benefit under the Plan equal to the initial
principal amount of such loan and such other collateral as may be required
by the Committee.
(4) Each loan shall bear a fixed interest rate which shall be equal to
the prime rate on the last Valuation Date of the month preceding the date
the loan is applied for as published in the Wall Street Journal on the
business day following such Valuation Date, plus 1%.
(5) No withdrawal (other than a hardship withdrawal made pursuant to
Section 8.1(c)) or distribution shall be made to any Participant who has
borrowed from the Trust unless and until the loan, including interest, has
been repaid.
(6) Each Participant requesting a loan shall, as a condition of
receiving such loan, pay such reasonable loan processing fee as shall be
set from time to time by the Committee. To the extent permitted by the
Committee, such fee may be paid from the loan proceeds.
(7) The Committee may, in its sole discretion, restrict the amount to
be disbursed pursuant to any loan request to the extent it deems necessary
to take into account any fluctuations in the value of a Participant's
accounts since the date on which the Participant filed a request for a
loan.
(8) The Committee may, in its sole discretion, cause a charge as an
expense to the accounts of any Participant receiving a loan any reasonable
administrative fee for processing or annual maintenance of such loan.
(c) Loan Default. In the event a Participant defaults on a Plan loan, the
entire unpaid balance of the loan shall become due and payable immediately. The
Committee may declare a loan to be in default if any of the following events
occur:
(1) the termination of his employment with his Employer for any reason
(including death);
(2) the Participant becoming a Disabled Participant;
(3) failure of the Participant to make any payment of principal or
interest on the loan on or before the date such payment is due;
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(4) the Participant's net paycheck (after all other payroll
deductions) decreases to an amount lower than his payroll deduction loan
repayment amount;
(5) failure of the Participant to perform or observe any of his
covenants, duties or agreements under the promissory note executed by the
Participant with respect to the loan;
(6) receipt by the Plan of opinion of counsel to the effect that (1)
the Plan will, or could, lose its status as a qualified plan under section
401(a) of the Code unless the loan is repaid or (2) the loan violates, or
may violate, any provision of ERISA;
(7) any portion of the Participant's account that is not in excess of
the amount that has been pledged as security for the loan becomes payable
from the Plan to the Participant, to any beneficiary of the Participant, or
to any "alternate payee" of the Participant pursuant to any qualified
domestic relations order (as defined in section 414(p) of the Code); or
(8) the Participant makes an assignment for the benefit of creditors,
files a petition in bankruptcy, is adjudicated insolvent or bankrupt, or
becomes a subject of any wage earner plan under the federal Bankruptcy Code
or under any applicable state insolvency law, or there is commenced against
the Participant any bankruptcy, insolvency, or other similar proceeding
which remains undismissed for a period of 60 days (or the Participant by an
act indicates his consent to, approval of, or acquiescence in any such
proceeding).
Notwithstanding the foregoing, loan repayments may be suspended for (i) any
period during which a Participant takes an authorized unpaid sick leave from his
Employer and (ii) any period of a Participant's unpaid authorized leave of
absence, but in no event for a period exceeding one year. A default shall occur
upon the Participant's resumption of active employment unless the Participant
pays all outstanding amounts in arrears upon such resumption, or upon the
expiration of such one-year period, if earlier.
In the event a default on a Participant loan occurs and the Participant
does not pay the entire unpaid balance of the loan (with accrued unpaid
interest) within five business days after the date the default occurs, the
Participant's vested interest under the Plan that has been pledged as security
for repayment of the Plan loan shall be applied immediately, to the extent
required, to pay the entire unpaid balance of the loan (and all accrued unpaid
interest thereon); provided, however, that in the case of a default described in
subparagraph (7) above, the Plan may distribute the Participant's promissory
note to the Participant (or if the Participant has died, to his beneficiary) in
full satisfaction of the Plan's liability to the Participant (or if the
Participant has died, to his beneficiary) with respect to that portion of the
Participant's vested account equal to the outstanding loan amount (including
accrued unpaid interest). Notwithstanding the foregoing, no portion of the
Participant's account consisting of, or attributable to, the Participant's
elective deferrals (as defined in section 402(g) of the Code) shall be applied
to pay an outstanding loan before the date the Participant terminates employment
or, if earlier, attains age 59 1/2.
Failure by the Committee to enforce strictly Plan rights with respect to a
default on a Plan loan shall not constitute a waiver of such rights.
(d) Applicability. The provisions of this Section 8.2 shall apply to any
person who is a Participant but who is not an Employee and any Beneficiary of a
deceased Participant if such Participant or Beneficiary is a "party in interest"
as defined in section 3(14) of ERISA. The grant of a loan pursuant to this
Section 8.2 and the terms and conditions thereof shall apply to any such
Participant or Beneficiary in the same manner as to a Participant who is an
Employee, except that the requirements of Section 8.2(b)(2) shall be met with
respect to each such Participant and Beneficiary if such Participant or
Beneficiary consents to have such loan repaid in substantially equal
installments as determined by the Committee, but not less frequently than
quarterly.
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(e) Loan Subaccount. The Committee shall cause to be maintained a loan
subaccount for the receipt of amounts debited from a Participant's accounts
attributable to any loan made pursuant to this Section 8.2. Appropriate
accounting entries reflecting such transfers shall be concurrent with the
disbursement to the Participant of amounts borrowed. A repayment of interest or
principal received in respect of amounts borrowed by a Participant shall be
credited to the loan subaccount of such Participant as soon as practicable after
the Valuation Date coinciding with or next following the date on which such
payment is made. The Committee shall then cause to be credited such repayments
to the Participant's Deferred Contribution Account, Rollover Account, Profit
Sharing Account and Matching Contribution Account in the same proportion as such
accounts were charged with the loan. Repayments so allocated to a Participant
shall then be allocated among such Participant's investment fund subaccounts in
accordance with such Participant's investment direction in effect at the time
that such repayments are credited to the Participant's accounts. Notwithstanding
the foregoing, with respect to loans made under the CPC Plan, the Committee
shall prescribe such procedures as it deems necessary for the repayment of such
amounts.
ARTICLE 9
DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT
9.1 Entitlement to Distribution Upon Termination of Employment. (a)
Vesting. A Participant or his designated Beneficiary, as the case may be, shall
be entitled to receive his or her entire Account balance as soon as
administratively practicable following the date on which the Participant's
termination of employment occurs if the Participant terminates employment after
completing at least three Years of Service, on account of death, after
attainment of age 65 or if such Participant becomes a Disabled Participant. If a
Participant terminates employment for any other reason before completing three
Years of Service, the balance of such Participant's Matching Contribution
Account and Profit Sharing Account shall be forfeited as described in subsection
(b) below. A Participant is always fully vested in the balance of such
Participant's Participant Contribution Account, Deferred Contribution Account
and Rollover Account (if any).
(b) Forfeitures. If upon a Participant's termination of employment the
Participant is not vested in his Matching Contribution Account and Profit
Sharing Account as described in subsection (a) above, the balance of such
accounts shall be credited to a special forfeiture account established on behalf
of such Participant. Such credit shall occur as of the Valuation Date as of
which the adjusted balance is determined, and such account shall not be taken
into account in determining, nor participate in, the allocations prescribed by
Article 7.
The amount credited to a special forfeiture account established on behalf
of a Participant shall be forfeited as of the earlier of (i) in the case of a
Participant who takes a distribution of the vested portion of the Participant's
interest in the Trust Fund as provided in Section 9.2, as of the end of the date
of such distribution and (ii) the date as of which the Participant incurs 5
consecutive Break in Service Years. If such Participant is reemployed prior to
taking a distribution and prior to incurring 5 consecutive Break in Service
Years such special account shall be restored.
9.2 Form of Distribution.
(a) In General. Except as provided in subsection (b) below, any
distribution to which a Participant or Beneficiary becomes entitled upon
termination of employment shall be distributed by the Trustee at the direction
of the Committee by payment in a single lump sum in cash. Notwithstanding the
preceding sentence, a Participant or Beneficiary, as the case may be, may elect
to receive distribution of the portion of such Participant's Account that is
invested in Company Stock or Bestfoods Stock in the form of whole shares of
Company Stock or Bestfoods Stock, as the case may be, with cash in lieu of
fractional shares.
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(b) Protected Forms of Distribution for former CPC Plan Participants.
Notwithstanding subsection (a) above, a Participant who, on December 31, 1997,
had an account balance under the CPC Plan, or a Beneficiary of any such
Participant, may elect that distribution of his Account be made in one of the
following optional forms of benefit, in lieu of a lump sum:
Option 1. Period Certain Annuity. The balance of the Participant's Account
shall be applied to purchase a single premium annuity contract providing
for equal monthly installment payments, over a payment period of 5, 10, 15
or 20 years, as may be specified by the Participant or Beneficiary, as the
case may be. Upon such individual's death such payments shall continue to
be made for the remainder of the period to the contingent annuitant,
designated by the Participant or Beneficiary, as the case may be.
Notwithstanding the foregoing, (i) in no event may a Participant (or
Beneficiary) elect to receive an annuity under this period certain option
for a period extending beyond his life expectancy, as determined in
accordance with section 401(a)(9) of the Code, and (ii) such distribution
shall otherwise comply with the incidental benefit requirement of section
401(a)(9) of the Code.
Option 2. Single Life Annuity with Cash Refund. The balance of the
Participant's Account shall be applied to purchase a single premium annuity
contract providing for (i) monthly payments for the lifetime of the
Participant or Beneficiary, as the case may be and (ii) for the payment in
a lump sum to the beneficiary designated by such Participant or
Beneficiary, as the case may be, of any excess of the purchase price of the
annuity over the aggregate of the benefits paid thereunder up to such
individual's death. If a Participant elects this form of benefit, he shall
be subject to the special election procedures described in Section 10.7.
Option 3. 50% Joint and Survivor Annuity with Cash Refund. The balance of
the Participant's Account shall be applied to purchase a single premium
annuity contract providing for reduced monthly payments for the
Participant's lifetime, and if the Participant's spouse survives him, to
such spouse for her remaining lifetime in an amount equal to 50% of the
Participant's monthly annuity payments. Such annuity shall also provide for
the payment in a lump sum to the Beneficiary by the survivor of the
Participant or his spouse of any excess of the purchase price of the
annuity over the aggregate of the benefits paid thereunder up to the death
of the survivor of the Participant or his spouse. If a Participant elects
this form of benefit, he shall be subject to the special election
procedures described in Section 10.7. This option shall not be available to
a Participant's Beneficiary.
Option 4. Combined Lump Sum and Annuity. The aggregate balance of a
Participant's Deferred Contribution Account, Participant Contribution
Account and Rollover Account shall be paid to the Participant (or
Beneficiary) in the form of a single lump sum in cash (or, if the
Participant or Beneficiary so elects with respect to the portion of such
accounts that are invested in Company Stock or Bestfoods Stock, in the form
of whole shares of Company Stock or Bestfoods Stock, as the case may be,
with cash in lieu of fractional shares) and the aggregate value of such
Participant's Matching Account and Profit Sharing Account shall be paid in
one of the forms specified in Options 1, 2 or 3 above, as elected by the
Participant (or in one of the forms specified in Options 1 or 2 above, if
elected by the Beneficiary).
9.3 Time of Distribution. Any distribution to which a Participant or his
Beneficiary becomes entitled upon termination of employment shall be made as
soon as administratively practicable following the date elected by the
Participant or the Participant's designated Beneficiary, as the case may be,
provided, however, that:
(a) subject to Section 10.2, if a Participant fails to make any
election, the Participant's Account shall be distributed in a single lump
sum cash payment no later than 60 days after the end of the Plan Year in
which the Participant attains age 65 (or terminates employment, if later);
provided that, the
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Participant may make an affirmative election to defer distribution to a
later date, but in no event later than April 1 of the calendar year
following the calendar year in which the Participant's attains age 70 1/2;
(b) distributions to a Participant's Beneficiary on account of the
Participant's death shall be made no later than December 31 of the calendar
year in which occurs the fifth anniversary of the Participant's death;
(c) with respect to a Participant who continues in employment after
attaining age 70 1/2, distribution of the Participant's account balance
shall commence no later than the Participant's required beginning date. For
purposes of this paragraph, the term "required beginning date" shall mean
(i) with respect to a Participant who is a 5%-owner (within the meaning of
section 416(i) of the Code) in the calendar year in which he attains age 70
1/2, April 1 of the calendar year following the calendar year in which the
Participant attains age 70 1/2 and (ii) with respect to any other
Participant, April 1 of the calendar year following the calendar year in
which the Participant retires. Notwithstanding the foregoing, to the extent
required by the Secretary of the Treasury, a Participant who is not a
5%-owner shall be permitted to elect that distributions commence no later
than April 1 of the calendar year following the calendar year in which the
Participant attains age 70 1/2. Distributions made under this paragraph
shall be made in accordance with section 401(a)(9) of the Code and
regulations thereunder.
9.4 Valuation of Accounts. For purposes of determining the value of a
Participant's account balance under the Plan for purposes of this Article, the
Participant's Account balance shall be valued as of the date the Participant's
request for a distribution is received by the Committee in acceptable form and
substance, or such other date prescribed by the Committee in conjunction with
the Plan's recordkeeper (such date to be applied in a uniform manner).
ARTICLE 10
SPECIAL PARTICIPATION AND DISTRIBUTION RULES
10.1 Direct Rollover Option. In the case of any distribution (including any
withdrawal) that is an "eligible rollover distribution" within the meaning of
section 402(c)(4) of the Code, a distributee may elect that all or any portion
of such distribution to which he is entitled shall be directly transferred from
the Plan to (i) an individual retirement account or annuity described in section
408 of the Code, (ii) to this Plan or another employer's retirement plan
qualified under section 401(a) of the Code (the terms of which permit the
acceptance of rollover distributions) or (iii) to an annuity plan described in
section 403(a) of the Code; provided, however, that if the distributee is a
surviving spouse of a Participant, such distribution may be transferred only to
an individual retirement account or annuity. Notwithstanding the foregoing, a
distributee shall not be entitled to elect to have an eligible rollover
distribution transferred pursuant to this subsection if the total of all
eligible rollover distributions with respect to such distributee for the Plan
Year is not reasonably expected to equal at least $200, or in the case of a
partial direct rollover, the portion so rolled over equals at least $500. For
purposes of this subsection, the term "distributee" shall include (i) a
Participant, (ii) an alternate payee (within the meaning of section 414(p)(8) of
the Code) with respect to a Participant under a qualified domestic relations
order or (iii) a surviving spouse of a Participant.
10.2 Distribution of Small Account Balances. If the balance of the
Participant's Account to be distributed under this Section does not exceed
$5,000 (or such other amount prescribed by section 411(a)(11) of the Code) (such
amount referred to herein as the "small benefit amount"), such balance shall be
distributed as soon as administratively practicable after the end of the
calendar quarter in which the Participant's termination of employment occurs (or
such other time prescribed by the Committee) in a single lump sum cash payment.
For pur-
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poses of the foregoing sentence, if as of the date of any previous distribution,
the value of a Participant's Account exceeds the small benefit amount, the value
of the Participant's Account shall at all times be deemed to exceed the small
benefit amount.
10.3 Designation of Beneficiary. Each Participant shall have the right to
designate a Beneficiary or Beneficiaries (who may be designated contingently or
successively and that may be an entity other than a natural person) to receive
any distribution to which the Participant is entitled upon his death pursuant to
Section 9.1, or payments under an optional annuity form of distribution
described in Section 9.2(b) upon the death of such Participant, provided,
however, that no such designation (or change thereof) shall be effective if the
Participant was married through the one-year period ending on the date of the
Participant's death unless such designation (or change thereof) was consented to
at the time of such designation (or change thereof) by the person who was the
Participant's spouse during such period, in writing, acknowledging the effect of
such consent and witnessed by a notary public or a Plan representative, or it is
established to the satisfaction of the Committee that such consent could not be
obtained because the Participant's spouse cannot be located or such other
circumstances as may be prescribed in Regulations. Subject to the preceding
sentence, a Participant may from time to time, without the consent of any
Beneficiary, change or cancel any such designation. Such designation and each
change therein shall be made in the form prescribed by the Committee and shall
be filed with the Committee. If (i) no Beneficiary has been named by a deceased
Participant, (ii) such designation is not effective pursuant to the proviso
contained in the first sentence of this Section, or (iii) the designated
Beneficiary has predeceased the Participant, any undistributed balance of the
deceased Participant's account shall be distributed by the Trustee at the
direction of the Committee:
(a) to the surviving spouse of such deceased Participant, if any, or
(b) if there is no surviving spouse, to the surviving children of such
deceased Participant, if any, in equal shares, or
(c) if there is no surviving spouse and there are no surviving
children, to the person or persons entitled to benefits under any group
term life insurance plan maintained by the Participant's Employer on
account of the Participant's death, in the shares prescribed by such plan,
if any, or
(d) if there is no surviving spouse, there are no surviving children
and there are no benefits payable under any such group term life insurance
plan, to the Participant's estate.
The marriage of a Participant shall be deemed to revoke any prior
designation of a Beneficiary made by him and a divorce shall be deemed to revoke
any prior designation of the Participant's divorced spouse if written evidence
of such marriage or divorce shall be received by the Committee before
distribution of the Participant's Account balance has been made in accordance
with such designation. If within a period of three years following the death or
other termination of employment of any Participant the Committee in the exercise
of reasonable diligence has been unable to locate the person or persons entitled
to benefits under this Article 10, the rights of such person or persons shall be
forfeited, provided, however, that the Plan shall reinstate and pay to such
person or persons the amount of the benefits so forfeited upon a claim for such
benefits made by such person or persons. The amount to be so reinstated shall be
obtained from the total amount that shall have been forfeited pursuant to this
Section 10.3 during the Plan Year that the claim for such forfeited benefit is
made. If the amount to be reinstated exceeds the amount of such forfeitures, the
Employer in respect of whose Employee the claim for forfeited benefit is made
shall make a contribution in an amount equal to the remainder of such excess.
Any such contribution shall be made without regard to whether or not the
limitations set forth in Section 5.3 will be exceeded by such contribution.
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If there is doubt as to the right of any beneficiary to receive any amount,
the Trustee on instructions of the Plan Administrator may retain such amount
until the rights thereto are determined, or it may pay such amount into any
court of appropriate jurisdiction, and none of the Plan Administrator, the
Committee, the Trustee, the Company or any Employer shall be liable for any
interest on such amount or shall be under any other liability to any person in
respect of such amount.
10.4 Distributions to Minor or Disabled Beneficiaries. Any distribution
which is payable to a person who is a minor or to a person who, in the opinion
of the Committee, is unable to manage his affairs by reason of illness or mental
incompetency may be made to or for the benefit of any such person in such of the
following ways as the Committee shall direct:
(a) directly to any such minor if, in the opinion of the Committee, he
is able to manage his affairs,
(b) to the legal representative of any such person,
(c) to a custodian under a Uniform Gifts to Minors Act for any such
minor, or
(d) to some near relative of any such person to be used for the
latter's benefit.
Neither the Committee nor the Trustee shall be required to review the
application by any third party of any distribution made to or for the benefit of
a person pursuant to this Section.
10.5 Qualified Domestic Relations Orders. If the Plan Administrator shall
receive any written judgment, decree or order (including approval of a property
settlement agreement) pursuant to State domestic relations or community property
law relating to the provision of child support, alimony or marital property
rights of a spouse, former spouse, child or other dependent of a Participant and
purporting to provide for the payment of all or a portion of the Participant's
Account to or on behalf of one or more of such persons (such judgment, decree or
order being hereinafter called a "domestic relations order"), the Plan
Administrator shall arrange to determine whether such order constitutes a
"qualified domestic relations order," as defined in section 414(p) of the Code
and section 206(d)(3) of ERISA. If the order is determined to be a qualified
domestic relations order, all or a portion of the Participant's Account, as
specified in the order, shall be assigned to the person or persons named
therein, and shall be payable in accordance with the terms of such order.
The manner in which all or any portion of a Participant's Account under the
Plan may be assigned and paid to any other person pursuant to the terms of a
domestic relations order shall be governed by procedures adopted by the Plan
Administrator for this purpose, section 414(p) of the Code, section 206(d)(3) of
ERISA and Regulations issued thereunder. Such procedures shall provide that
payments under a domestic relations order applicable to a Participant's Account
under the Plan may commence as soon as administratively practicable after such
order is determined by the Plan Administrator (or its delegate) to constitute a
"qualified domestic relations order" under section 414(p) of the Code and
section 206(d)(3) of ERISA, if the terms of the order so provide.
10.6 Reemployment of Veterans. The provisions of this Section shall apply
in the case of the reemployment by an Employer of an Eligible Employee, within
the period prescribed by USERRA, after the Eligible Employee's completion of a
period of qualified military service (as defined in section 414(u)(5) of the
Code). The provisions of this Section are intended to provide such Eligible
Employees with the rights required by USERRA and section 414(u) of the Code and
shall be interpreted in accordance with such intent.
(a) Make Up of Participant Contributions and Deferred Contributions.
Such Eligible Employee shall be entitled to make contributions under the
Plan in addition to any Participant Contributions
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which the Eligible Employee elects to have made under the Plan pursuant to
Section 3.1 (such contributions referred to herein as "Make Up Participant
Contributions"), and shall be entitled to make contributions under the Plan
in addition to any Deferred Contributions which the Eligible Employee
elects to have made under the Plan pursuant to Section 3.3 (such
contributions referred to herein as "Make Up Deferred Contributions"). From
time to time while employed by an Employer, such Employee may elect to make
such Make Up Participant Contributions and Make Up Deferred Contributions
during the period beginning on the date of such Employee's reemployment and
ending on the earlier of:
(i) the end of the period equal to the product of three and such
Employee's period of qualified military service, and
(ii) the 5th anniversary of the date of such reemployment.
Such Employee shall not be permitted to contribute Make Up Participant
Contributions and Make Up Deferred Contributions to the Plan in excess of
the amount which the Employee could have elected to have made under the
Plan in the form of Participant Contributions or Deferred Contributions, as
the case may be, if the Eligible Employee had continued in employment with
his Employer during such period of qualified military service. Such
Eligible Employee shall be deemed to have earned "Compensation" from his
Employer during such period of qualified military service for this purpose
in the amount prescribed by sections 414(u)(2)(B) and 414(u)(7) of the
Code. The manner in which an Eligible Employee may elect to make Make Up
Participant Contributions and Make Up Deferred Contributions pursuant to
this subsection (a) shall be prescribed by the Committee.
(b) Make Up of Matching Contributions. An Eligible Employee who makes
Make Up Participant Contributions or Make Up Deferred Contributions as
described in subsection (a) shall be entitled to an allocation of Matching
Contributions ("Make Up Matching Contributions") in an amount equal to the
amount of Matching Contributions which would have been allocated to the
Matching Contribution Account of such Eligible Employee under the Plan if
such Make Up Participant Contributions or Make Up Deferred Contributions
had been made in the form of Participant Contributions or Deferred
Contributions, as the case may be, during the period of such Employee's
qualified military service (as determined pursuant to section 414(u) of the
Code). The Eligible Employee's Employer shall make a special contribution
to the Plan which shall be utilized solely for purposes of such allocation.
Any contributions made by an Eligible Employee or an Employer pursuant
to this Section on account of a period of qualified military service in a
prior Plan Year shall not be subject to the limitations prescribed by
Sections 3.5, 5.3 and 5.1 of the Plan (relating to sections 402(g), 404 and
415 of the Code, respectively) for the Plan Year in which such
contributions are made. The Plan shall not be treated as failing to satisfy
the nondiscrimination rules of Section 5.2 of the Plan (relating to
sections 401(k)(3) and 401(m) of the Code) for any Plan Year solely on
account of any make up contributions made by an Eligible Employee or an
Employer pursuant to this Section.
10.7 Special Rules Relating to Election of Annuity Form of Benefit. The
provisions of this Section shall apply only to a Participant who elects to
receive payment of all or a portion of his Account in one of the optional
annuity forms of benefit described under Options 2 and 3 in Section 9.2(b).
(a) Qualified Joint and Survivor Annuity Notice. No less than 30 days
(or such shorter period as may be permitted by section 417(a)(7) of the
Code) and no more than 90 days before the date of distribution, the
Committee shall give the Participant by mail or personal delivery written
notice a general description of the single premium annuity contract, a
general description of the circumstances under which it will be purchased
and general information on the amount of each payment under a typical
single
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premium annuity contract. Such notice also shall advise the Participant
that, upon written request to the Committee prior to the end of his
election period, he shall be given a written explanation in nontechnical
language of the terms and conditions of the single premium annuity
contract, of the other methods of distribution available pursuant to
Section 9.2 and of the amount of each payment that he would be entitled to
receive under such a contract or under the other methods of distribution.
Such explanation shall be mailed or personally delivered to the Participant
within 30 days from the date the Participant's written request is received
by the Committee and the Participant's election period shall end no earlier
than 90 days after such explanation is so mailed or delivered.
(b) Qualified Pre-retirement Survivor Annuity. If the Participant is
married and dies after making an election to have his Account distributed
in an annuity form of benefit but prior to his annuity starting date, such
Participant's Account shall be applied to purchase a single premium annuity
contract providing for payment over the lifetime of the Participant's
surviving spouse. Notwithstanding the foregoing, the Participant's
surviving spouse may elect, in the time and manner prescribed by the
Committee, to receive payment of the Participant's Account in the form of a
single sum, in lieu of a single premium annuity contract.
(c) Election and Waiver Procedures. A Participant may, subject to the
last sentence of this paragraph, revoke the annuity form of distribution
provided under the Plan at any time during the 90-day period ending on the
Participant's benefit commencement date (or such other period permitted by
section 417(a)(7) of the Code) (the "election period"). Such a revocation
shall be made by delivering a written notice describing the election,
change or revocation to the Committee on a form provided by the Committee
for this purpose; provided, however, that if the Participant has been
married for the one-year period ending on his benefit commencement date,
and as a result of such revocation, the Participant's spouse would not be
entitled to receive a survivor's benefit at least equal to that provided by
the 50% joint and survivor annuity form of benefit, such election shall not
be effective unless it shall have been consented to, at the time of such
election, revocation or change, in writing by the Participant's spouse and
such consent acknowledges the effect of such revocation and is witnessed by
either a Plan representative or a notary public, or it is established to
the satisfaction of the Committee that such consent cannot be obtained
because the Participant's spouse cannot be located or such other
circumstances as may be prescribed in Regulations.
ARTICLE 11
SHAREHOLDER RIGHTS WITH RESPECT TO COMPANY STOCK
11.1 Voting Rights. Each Participant who participates in the Company Stock
Fund (or, in the event of the Participant's death, his beneficiary under the
Plan) is, for purposes of this Section, hereby designated as a "named fiduciary"
(within the meaning of Section 403(a)(1) of ERISA) with respect to a pro rata
portion (as hereinafter determined) of the unallocated shares of Company Stock
in the Company Stock Fund (and certain allocated shares of Company Stock in the
Company Stock Fund as to which timely directions are not received by the
Trustee). Such Participant shall have the right to direct the Trustee as to the
manner in which shares of Company Stock allocated to his accounts under the Plan
and such other shares of common stock are to be voted on each matter brought
before a meeting of the stockholders of the Company as set forth below.
When the Company files preliminary proxy solicitation materials with the
Securities and Exchange Commission, the Company shall cause a copy of all
materials to be sent simultaneously to the Trustee. Based on these materials the
Trustee shall prepare a voting instruction form. At the time of mailing of
notice of each annual or special stockholders' meeting of the Company, the
Company shall cause a copy of the notice and all proxy so-
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licitation materials to be sent to, each Participant with an interest in the
Company Stock Fund, together with the foregoing voting instruction form to be
returned to the Trustee or its designee. The form shall show the number of full
and fractional shares of Company Stock allocated to the Participant's respective
accounts. The Company shall provide the Trustee with a copy of any materials
provided to Participants and shall certify to the Trustee that the materials
have been mailed or otherwise sent to Participants. Upon timely receipt of
directions from each Participant, the Trustee shall vote as directed, on each
such matter, the number of shares (including fractional shares) of Company Stock
allocated to such Participant's accounts, and the Trustee shall have no
discretion in such matter. If the Trustee shall not receive timely direction
from a Participant as to how shares of common stock allocated to such
Participant's account in the Company Stock Fund shall be voted, the Trustee
shall vote such shares in the same proportion in which the shares held in the
Company Stock Fund for which it received timely directions were voted, and the
Trustee shall have no discretion in such matter.
For purposes of this Section the shares of Company Stock held in the
Company Stock Fund shall be treated as allocated to the accounts of Participants
in proportion to their respective interests in the Company Stock Fund as of the
immediately preceding record date for ownership of Corn Products International,
Inc. stock for stockholders entitled to vote. If any shares held in the Company
Stock Fund are not allocated to the accounts of Participants when a matter is
brought to the stockholders of the Company for voting, the Trustee shall vote
such unallocated shares in the same proportion on each issue in which responding
Participants voted the shares allocated to their accounts in the Company Stock
Fund, and the Trustee shall have no discretion in such matter. Directions from a
Participant pursuant to this Section shall be held in confidence by the Trustee
and shall not be divulged or released to the Company, or any officer or employee
thereof, or any other person.
11.2 Shareholder Rights in the Event of a Tender Offer. In the event a
tender or exchange offer is made for any shares of Company Stock, each
Participant who participates in the Company Stock Fund is, for purposes of this
Section, hereby designated as a "named fiduciary" (within the meaning of Section
403(a)(1) of ERISA) with respect to a pro rata portion (as hereinafter
determined) of the unallocated shares of Company Stock in the Company Stock
Fund. Such Participant shall have the right to direct the Trustee in writing as
to the manner in which to respond to such tender or exchange offer with respect
to the shares of Company Stock allocated to his account in the Company Stock
Fund and with respect to a portion of the unallocated shares of Company Stock as
set forth below.
Upon commencement of a tender or exchange offer for any securities held in
the Trust that are Company Stock, the Company shall notify each Participant with
an interest in such securities of the tender or exchange offer and utilize its
best efforts to distribute timely or cause to be distributed to the Participant
the same information that is distributed to shareholders of the Company in
connection with the tender or exchange offer and, after consulting with the
Trustee, shall provide and pay for a means by which the Participant may direct
the Trustee whether to tender the Company Stock allocated to the Participant's
accounts. The Company shall provide the Trustee with a copy of any material
provided to Participants and shall certify to the Trustee that the materials
have been mailed or otherwise sent to Participants. Upon timely receipt of
directions from each Participant, the Trustee shall respond as directed with
respect to such shares of Company Stock allocated to the Participant's account
in the Company Stock Fund. The directions received by the Trustee from
Participants and beneficiaries shall be held by the Trustee in confidence and
shall not be divulged or released to any person, including officers or employees
of the Company or any affiliate thereof, except to the extent that the
consequences of such directions are reflected in reports regularly communicated
to any such persons. If the Trustee shall not receive timely direction from a
Participant as to the manner in which to respond to such tender or exchange
offer with respect to shares of Company Stock allocated to the Participant's
account in the Company Stock Fund, the Trustee shall not tender or exchange such
shares of Company Stock, as the case may be, and the Trustee shall have no
discretion in such matter.
For purposes of this Section, the shares of Company Stock held in the
Company Stock Fund shall be treated as allocated to the accounts of Participants
in proportion to their respective interests in the Company Stock
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Fund as of the immediately preceding record date for ownership of Company Stock
for stockholders entitled to tender. The Committee may direct the Trustee to
make a special valuation of the Company Stock Fund in connection with such
tender or exchange offer. If, for any reason, there are any shares of Company
Stock held in the Company Stock Fund which are not allocated to the accounts of
Participants at the applicable time, the Trustee shall respond to such tender or
exchange offer with respect to such unallocated shares by tendering or
exchanging unallocated shares in the same proportion as the allocated shares
held under the Company Stock Fund for which directions were received from
Participants are tendered or exchanged, and by not tendering or exchanging the
balance of such unallocated shares, and the Trustee shall have no discretion in
such matter.
A Participant who has directed the Trustee to tender or exchange some or
all of the shares of Company Stock allocated to his accounts may, at any time
prior to the tender or exchange offer withdrawal date, direct the Trustee to
withdraw some or all of such tendered or exchanged shares, and the Trustee shall
withdraw the directed number of shares from the tender or exchange offer prior
to the offer withdrawal deadline. Prior to the withdrawal deadline, if any
shares of Company Stock not allocated to Participants' accounts have been
tendered or exchanged, the Trustee shall redetermine the number of such
securities that would be tendered or exchanged under this Section if the date of
the foregoing withdrawal were the date of determination, and withdraw from the
tender or exchange offer the number of shares of Company Stock to the extent
necessary to reduce the amount of such tendered or exchanged securities not
allocated to Participant's accounts to the amount so redetermined. A Participant
shall not be limited as to the number of directions to tender or exchange or
withdraw that the Participant may give the Trustee.
A direction by a Participant to the Trustee to tender or exchange shares of
Company Stock allocated to his accounts shall not be considered a written
election under the Plan by the Participant to withdraw, or have distributed, any
or all of his withdrawable shares. The Trustee shall credit to the account of
the Participant from which the tendered or exchanged shares were taken the
proceeds received by the Trustee in exchange for the shares of Company Stock
tendered or exchanged from that account. Pending receipt of directions (through
the Plan Administrator) from the Participant or the Company as to which of the
remaining investment options the proceeds should be invested in, the Trustee
shall invest the proceeds in such investment fund as specified by the Committee.
11.3 Bestfoods Stock Fund. The voting rights and shareholder rights in the
event of a tender offer described in Sections 11.1 and 11.2 shall be applicable
to Participants in the Bestfoods Stock Fund with respect to a pro rata portion
of the unallocated shares of Bestfoods Stock in the Bestfoods Stock Fund, as
determined in Section 11.1. For purposes of this Section, references to
"Company" and "Company Stock" in such Sections shall mean "Bestfoods and
"Bestfoods Stock," respectively.
11.4 Applicability. For purposes of this Article, the term "Participant"
shall include any Beneficiary of a deceased Participant and any alternate payee
under a qualified domestic relations order on whose behalf an account has been
established under this Plan.
ARTICLE 12
ADMINISTRATION
12.1 The Committee. The Board of Directors shall appoint the Committee
which shall consist of at least three members. The Committee shall be the
"administrator" of the Plan within the meaning of section 3(16) of ERISA, and
the Company and the Committee each shall be a "named fiduciary" of the Plan
under ERISA. Administration of the Plan shall be the responsibility of the
Committee except to the extent that authority to hold
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the Trust Fund of the Plan has been delegated to the Trustee, in accordance with
Section 12.2, and authority to direct the investment and reinvestment of the
Trust Fund has been delegated to the Committee.
12.2 Investment Committee. The Committee may appoint an investment
committee of at least three members, to invest, or direct the investment of,
such portion of the Trust Fund as the Committee may direct. If so appointed, the
investment committee shall be a "named fiduciary" within the meaning of ERISA to
the extent of its responsibilities under the Plan.
12.3 Authority and Duties of the Committee. The Committee may in its
discretion appoint, use or employ accountants, counsel, financial specialists
(including investment advisors and investment managers, as defined in ERISA) and
such other person or persons (who may be employees of an Employer) as it deems
necessary or desirable in connection with the administration or management of
this Plan and the Trust Fund. The reasonable fees of such persons, and any other
necessary and proper expenses of the Committee, shall be paid out of the Trust
Fund unless such amounts are paid by the Employers.
The Committee shall have the power and discretionary authority to:
(a) Adopt rules, regulations and procedures with respect to the
administration of the Plan;
(b) Construe this document, the Committee's interpretation of which in
good faith shall be final and binding;
(c) Correct any defect, supply any omission, or reconcile any
inconsistency in this document in that manner and to that extent which the
Committee believes is necessary; and
(d) Resolve all questions which arise under this document, including
directions to and questions submitted by the Trustee, any insurer or any
other entity holding the assets of the Plan on all matters necessary for it
to discharge its powers and duties, and any questions relating to the
eligibility of one or more Participants for benefits from the Plan and the
amount of such benefits and the manner and form in which such benefits may
be paid.
The Committee also shall have sole discretion to delegate (with written
notice to the Company and the Trustee) any fiduciary responsibilities to another
person, such as the Plan Administrator or an investment manager. To the extent
those responsibilities are delegated, the Committee shall be relieved of
liability for acts or omissions of the person or persons to whom
responsibilities are delegated, to the fullest extent permitted by law.
Except as it may delegate the power of interpretation as provided herein,
the Committee shall have the exclusive authority to interpret the Plan
provisions and to exercise discretion where necessary or appropriate in the
interpretation and administration of the Plan and to decide any and all matters
arising thereunder or in connection with the administration of the Plan. Subject
to the claims review procedure established by the Committee, the decisions,
actions and records of the Committee shall be conclusive and binding upon the
Employers, Participants, and their estates, and any and all persons having, or
claiming to have, any rights or interest in or under the Plan.
The Committee shall adopt and implement a policy for the investment of the
Trust Fund, including notification to the Trustee (or the investment committee
or investment manager, if appointed) of such policy and periodic review of the
performance of the Trustee (or the investment committee or investment manager,
if appointed) to assure investments consistent with such policy.
12.4 Plan Administrator. The Committee shall appoint a Plan Administrator
who shall be responsible for the daily operation of the Plan within the
policies, interpretations and rules made by the Committee. The Plan
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Administrator shall also perform such ministerial functions with respect to the
Plan as the Committee shall from time to time designate. The Plan Administrator
may (but need not) be a member of the Committee. The Plan Administrator may
resign upon 45 days written notice to the Committee (or shorter notice
acceptable to the Committee). The Committee may, in its sole discretion, remove
the Plan Administrator. The Committee shall have the power to fill a vacancy
created by the resignation, removal or death of the Plan Administrator. The
reasonable fees of accountants, counsel or other consultants, the expenses of
clerical help, and any other necessary and proper expenses of the Plan
Administrator, shall be paid out of the Trust Fund unless such amounts are paid
by the Employers. The Plan Administrator shall report to the Committee from time
to time in order that the Plan Administrator's performance of his duties may be
reviewed.
12.5 Review of Fiduciary Responsibility Designations or Allocations. Each
designation or allocation made under Section 12.3 shall also provide that the
Committee shall periodically meet with the person or persons to whom the
delegation was made to review the performance of the person to whom duties have
been delegated. This review, which may be conducted by all Committee members or
by a designated review subcommittee, will permit the Committee to determine
whether it should continue the allocation or designation.
12.6 Reliance on Others. The members of the Committee, the Plan
Administrator and the officers and directors of the Company shall be entitled to
rely upon all certificates and reports made by any duly appointed accountant,
upon all opinions given by any duly appointed legal counsel, and upon such staff
or specialists as they may deem necessary or desirable to employ with respect to
their responsibilities pursuant to the Plan. Any one or all of the foregoing
appointees may also be currently serving or have served in a similar capacity
for an Employer.
12.7 Liability. Neither the Plan Administrator nor any member of the
Committee shall be liable for any act or omission of any other person, nor for
any act or omission on his own part, excepting only his own willful misconduct
or except as otherwise expressly provided in ERISA. To the extent permitted by
applicable law, each Employer shall indemnify and save harmless each employee,
officer or director of such Employer acting as a fiduciary (other than the
Trustee) against any and all expenses and liabilities arising out of his
fiduciary responsibilities, excepting only expenses and liabilities arising out
of his own willful misconduct; and the Company shall indemnify and hold harmless
the Plan Administrator for all acts and omissions relating to his duties as Plan
Administrator, except those arising out of his willful misconduct. Expenses
against which such person may be indemnified hereunder include, without
limitation, the amount of any settlement or judgment, costs, counsel fees and
related charges reasonably incurred in connection with a claim asserted or a
proceeding brought or settlement thereof. The Committee, at an Employer's
expense, may settle any such claim asserted or proceeding brought against such
person when such settlement appears to be in the best interest of such Employer.
The foregoing right of indemnification shall be in addition to any other rights
to which any such person may be entitled as a matter of law.
12.8 Claims Procedure. For purposes of the Plan, a claim for benefit is a
written application for benefit filed with the Plan Administrator. In the event
that any Participant or other payee claims to be entitled to a benefit under the
Plan, and the Plan Administrator determines that such claim should be denied in
whole or in part, the Plan Administrator shall, in writing, notify such claimant
within 90 days of receipt of such claim that his claim has been denied, setting
forth the specific reasons for such denial. Such notification shall be written
in a manner reasonably expected to be understood by such Participant or other
payee and shall set forth the pertinent sections of the Plan relied on, and
where appropriate, an explanation of how the claimant can obtain review of such
denial. Within 60 days after the mailing or delivery by the Plan Administrator
of such notice, such claimant may request, by mailing or delivery of written
notice to the Committee, a review and/or hearing by the Committee of the
decision denying the claim. If the claimant fails to request such a review
and/or hearing within such 60-day period, it shall be conclusively determined
for all purposes of this Plan that the denial of such claim by the Plan
Administrator is correct. If such claimant requests a hearing within such 60-day
period, the Committee shall
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designate a time (which time shall be not more than 60 days from the date of
such claimant's notice to the Committee) and a place for such hearing, and shall
promptly notify such claimant of such time and place. If only a review is
requested, the Participant or other payee shall have 30 days after filing a
request for review to submit additional written material in support of the
claim. After such review and/or hearing, the Committee shall determine whether
such denial of the claim was correct and shall notify such claimant in writing
of its determination. If such determination is favorable to the claimant, it
shall be binding and conclusive. If such determination is adverse to such
claimant, it shall be binding and conclusive unless the claimant notifies the
Committee within 90 days after the mailing or delivery to him by the Committee
of its determination that he intends to institute legal proceedings challenging
the determination of the Committee, and actually institutes such legal
proceeding within 180 days after such mailing or delivery.
ARTICLE 13
PARTICIPATION IN PLAN BY AFFILIATE
13.1 Adoption by Participating Employers. Any entity which is an Affiliate
may, with the consent of the Company, become a participating Employer in this
Plan by adopting the Plan for its eligible Employees, and by taking such other
action as the Company deems necessary or appropriate to become a party to this
Plan and trust established hereunder. The Company and any other participating
Employer may, through an amendment to the Plan, designate particular divisions
or units thereof which shall be eligible to participate in this Plan.
13.2 Special Provisions for Employees of Acquired Companies.
(a) In approving the adoption of the Plan or its extension to employees of
any organization all or a part of whose business or assets, or both, are
acquired by an Employer by merger, purchase or otherwise, the Company shall,
subject to applicable law, designate the extent, if any, to which the employees'
employment with predecessor companies prior to the date of such adoption or
extension shall be considered in determining their Years of Service and the
extent, if any, to which benefits with respect to employment prior to the date
of such adoption or extension shall be provided under the Plan. Such
designations shall be indicated in the applicable schedule of any appendices to
this Plan.
(b) The special provisions referred to in subsection (a) above shall, to
the extent applicable, govern as to eligibility for, and amounts of, benefits
payable hereunder, the regular provisions of the Plan notwithstanding.
ARTICLE 14
AMENDMENT AND TERMINATION
14.1 Amendment. The Board of Directors or the Committee (through action
taken by the Board of Directors in accordance with its By-laws) reserves the
right at any time to amend, modify or suspend the Plan, any contributions
thereunder, the Trust Fund or any contract forming a part of the Plan in whole
or in part and for any reason and without the consent of any Participant or
Beneficiary.
14.2 Termination. The Plan may be terminated in its entirety at any time by
resolution adopted by the Board of Directors. Any participating Employer may
terminate the Plan with respect to its Eligible Employees by withdrawing from
participation in the Plan.
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14.3 Full Vesting Upon Termination. Upon a full termination or partial
termination of the Plan, each affected Participant shall become 100% vested in
the balance of such Participant's accounts under the Plan.
14.4 Segregation of Trust. In the event of a partial termination of the
Plan, or the withdrawal therefrom by a participating Employer, the Committee
shall determine the portion of the Trust Fund allocable to the affected
Participants. The Trustee shall select the assets to be withdrawn or segregated
and its valuation of them for that purpose shall be conclusive. All assets of
the Plan withdrawn or segregated under this provision shall be placed in a
separate trust fund as directed by the Committee.
14.5 Committee Determination Conclusive. The Committee's determination as
to the persons to be provided for, the amounts allocated, or any other material
facts shall be conclusive and binding upon the Trustee and all claimants to any
interest in the Plan.
ARTICLE 15
TOP-HEAVY PROVISIONS
15.1 Definitions. For purposes of this Article 15, the following terms
shall have the following meanings:
(a) "Determination Date" means, with respect to any Plan Year, the
last Valuation Date of the preceding Plan Year.
(b) "Key Employee" means a Participant or former Participant who is a
"key employee" as defined in section 416(i) of the Code.
(c) "Permissive Aggregation Group" means, with respect to a given Plan
Year, this Plan and all other plans of the Company which may be aggregated
in accordance with section 416(g)(2)(A)(ii) of the Code.
(d) "Present Value of Accounts" means, as of a given Determination
Date, a Participant's Account balance under the Plan as of such Valuation
Date. The determination of the Present Value of Accounts shall take into
consideration distributions made during the Plan Year ending on the
Determination Date and the four preceding years.
(e) "Required Aggregation Group" means with respect to a given Plan
Year, this Plan and all other plans of the Company which, in the aggregate,
meet the requirements of the definition contained in section
416(g)(2)(A)(i) of the Code.
(f) "Top-Heavy" means, with respect to the Plan for a Plan Year:
(1) that the Present Value of Accounts of Key Employees exceeds
60% of the Present Value of Accounts of all Participants; or
(2) the Plan is part of a Required Aggregation Group and such
Required Aggregation Group is a Top-Heavy Group, unless the Plan or
such Top-Heavy Group is itself part of a Permissive Aggregation Group
which is not a Top-Heavy Group.
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(g) "Top-Heavy Group" means, with respect to a given Plan Year, a
group of Plans of the Company which, in the aggregate, meet the
requirements of the definition contained in section 416(g)(2)(B) of the
Code.
15.2 Adjustments for Top-Heavy Years. Notwithstanding any other provision
of the Plan to the contrary, the following provisions of this Section shall
automatically become operative and shall supersede any conflicting provisions of
the Plan if, in any Plan Year, the Plan is Top-Heavy.
(a) The minimum Employer contribution during the Plan Year on behalf
of a Participant who is not a Key Employee shall be equal to the lesser of
(1) 3% of such Participant's compensation (within the meaning of section
415 of the Code); or (2) the percentage of compensation at which Company
contributions (including Company contributions attributable to a salary
reduction arrangement) are made (or required to be made) under the Plan on
behalf of the Key Employee for whom such percentage is the highest.
(b) In the case of a Participant under this Plan who is not a Key
Employee and who also participates in a defined benefit pension plan of the
Company which is included in the Aggregation Group, the provisions of
subsection (a) above shall be inapplicable, and such defined benefit
pension plan shall provide for a defined benefit minimum pension benefit in
accordance with section 416(c)(1) of the Code.
(c) For Plan Years commencing prior to January 1, 2000, in the case of
a Participant who is or has also participated in a defined benefit plan of
the Company (or any member of the Group that is required to be aggregated
with the Company in accordance with section 415(h) of the Code) in any Plan
Year in which the Plan is Top-Heavy, there shall be imposed under such
defined benefit plan the following limitation in addition to any limitation
which may be imposed as described in Article 5. In any such year, for
purposes of satisfying the aggregate limit on contributions and benefits
imposed by section 415(e) of the Code, benefits payable from the defined
benefit plan shall, except as hereinafter described, be reduced so as to
comply with a limit determined in accordance with section 415(e) of the
Code, but with the number "1.0" substituted for the number "1.25" in the
"defined benefit plan fraction" (as defined in section 415(e)(2) of the
Code) and in the "defined contribution plan fraction" (as defined in
section 415(e)(3) of the Code). Notwithstanding the foregoing, if the
application of the additional limitation set forth in this subsection (c)
would result in the reduction of accrued benefits of any Participant under
the defined benefit plan, such additional limitation shall not become
operative, so long as (1) no additional Company contributions, forfeitures
or voluntary nondeductible contributions are allocated to such
Participant's accounts under any defined contribution plan maintained by
the Company including this Plan and (2) no additional benefits accrue to
such Participant under any defined benefit plan maintained by the Company.
Accordingly, in any Plan Year that the Plan is Top-Heavy, no additional
benefits shall accrue under the defined benefit plan on behalf of any
Participant whose overall benefits under the defined benefit plan otherwise
would be reduced in accordance with the limitation described in this
subsection (c).
(d) In the event that Congress should provide by statute, or the
Treasury Department should provide by regulation or ruling, that the
limitations provided in this Article 15 are no longer necessary for the
Plan to meet the requirements of section 401(a) of the Code or other
applicable law then in effect, such limitations shall become void and shall
no longer apply, without requiring amendment of the Plan.
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ARTICLE 16
GENERAL PROVISIONS
16.1 Limitation of Rights. The Trust Fund shall be the sole source of
benefits under this Plan, and each Participant or any other person who shall
claim the right to any payment or benefit under this Plan shall be entitled to
look only to the Trust Fund for such payment or benefit, and shall not have any
right, claim or demand therefor against the Company, an Employer, or any officer
or director of the Company or an Employer.
16.2 No Right to Employment. Nothing herein contained shall be deemed to
constitute a contract of employment between any Employer and any Employee, to
give any Employee the right to be retained in the employment of any Employer, or
to interfere with the rights of an Employer to discharge any Employee at any
time.
16.3 Payments Due to Missing Participants. If the Trustee or the Company is
unable to make payment to any person to whom a payment is due under the Plan
because it cannot ascertain the identity or whereabouts of such person, and if
more than six years after such payment is due, a notice of payment so due is
mailed by the Company to the last known address of such person as shown on the
records of the Company and within three months after such mailing such person
has not made written claim therefor, the Company may direct that such payment
and all remaining payments otherwise due to such person be cancelled.
Furthermore, no amount shall be cancelled under this Section unless the Plan
Administrator verifies to the Committee that he has furnished to such
Participant, when the Participant first became entitled to receive a
distribution from his account, an individual statement setting forth the nature,
amount and form of the nonforfeitable amounts to which the Participant is
entitled. Any amount so cancelled shall be restored by the Company if and when
the same shall be claimed by such person entitled to receive it.
16.4 Transfer to an Affiliate. In the case of any individual who becomes a
Participant and who was an employee of an Affiliate, the Plan and the Trustee
may permit a transfer of such individual's accrued benefit, if any, directly
into the Trust from such other trust.
16.5 Election Made Through Telephone System. Unless otherwise specified
herein, any election or consent permitted or required to be made or given by any
Participant and any permitted modification or revocation thereof, shall be made
in writing or shall be given by means of such interactive telephone system as
the Committee may designate from time to time. Each Participant shall have a
personal identification number or "PIN" for purposes of executing transactions
through such Benefits Express interactive telephone system, and entry by a
Participant of his PIN shall constitute his valid signature for purposes of any
transaction the Committee determines should be executed by means of such
interactive telephone system, including but not limited to enrolling in the
Plan, electing contribution rates, making investment choices, executing loan
documents, and consenting to a withdrawal or distribution. Any election made
through such interactive telephone system shall be considered submitted to the
Committee on the date it is electronically transmitted.
16.6 Merger or Consolidation with Another Plan. The Plan shall not merge or
consolidate with, or transfer its assets or liabilities to any other plan or
entity unless each Participant would, if the surviving plan or entity were then
terminated, receive a benefit immediately after the merger, consolidation or
transfer which is equal to or greater than the benefit which he would have been
entitled to receive if the Plan had terminated immediately before the merger,
consolidation or transfer.
16.7 Company Action. Any action to be taken hereunder by the Company shall
be taken by the Board of Directors, or by such officer or officers of the
Company which power to take action under this Plan has been delegated by the
Board of Directors.
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16.8 Headings. The headings of the Sections in this Plan are used for
reference only and in the case of any conflict the text of the Plan, rather than
such headings, shall control.
16.9 Gender and Plurals. Masculine pronouns include the feminine as well as
the masculine gender, and words used in the singular include the plural,
wherever appropriate.
16.10 Construction. The Plan shall be construed, regulated, and
administered in accordance with the laws of the State of Illinois, except to the
extent superseded by the Code or ERISA.
Executed on the 29th day of December, 1997
CORN PRODUCTS INTERNATIONAL, INC.
By: /s/ James J. Hirchak
----------------------------
Name: James J. Hirchak
Title: Human Resources
ATTEST:
By: /s/ Marcia E. Doane
-----------------------------
Title: Corporate Secretary
EXHIBIT 5
[Letterhead of Corn Products International, Inc.]
December 29, 1997
Securities and Exchange Commission 450 5th Street, N.W.
Washington, D.C. 20549
RE: Corn Products International, Inc.
Registration Statement on Form S-8
Gentlemen:
I am Vice President, General Counsel and Corporate Secretary of Corn
Products International, Inc. (the "Company") and am rendering this opinion for
the Company in connection with the preparation of the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended. The Registration
Statement covers shares of the Company's Common Stock, $.01 par value, offered
under the Corn Products International, Inc. Savings Plan (the "Plan").
In arriving at the opinion expressed below, I have examined and relied on
or otherwise identified to my satisfaction, all such corporate records of the
Company and such other instruments and other certificates of public officials,
officers and representatives of the Company and such other persons, and I have
made such investigations of law, as I have deemed appropriate as a basis for the
opinion expressed below.
Based on the foregoing, I advise you that it is my opinion that all of the
issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; no holder
thereof is or will be subject to personal liability by reason of being such a
holder; and none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive rights of any stockholder of the Company.
I express no opinion other than as to the federal laws of the United States
of America, the laws of the State of Illinois and the General Corporation Law of
Delaware.
I hereby consent to the filing of a copy of this opinion with the
Commission as an exhibit to the Registration Statement referred to above.
Very truly yours,
/s/ Marcia E. Doane
-------------------------------------
Marcia E. Doane
Vice President,
General Counsel and Corporate Secretary
EXHIBIT 23(i)
(LETTERHEAD OF KPMG PEAT MARWICK LLP)
CONSENT OF THE INDEPENDENT AUDITORS
The Board of Directors
Corn Products International, Inc.:
We consent to the incorporation by reference of our report dated September 16,
1997, relating to the combined balance sheets of Corn Products International,
Inc. and Subsidiaries as of December 31, 1996 and 1995, and the related combined
statements of income, stockholders' equity, and cash flows for each of the years
in the three year period ended December 31, 1996 incorporated herein by
reference in the Registration Statement on Form S-8 and in the related
prospectus pertaining to the registration of Corn Products International, Inc.
common stock for the Corn Products International, Inc. Savings Plan.
KPMG PEAT MARWICK LLP
/s/ KPMG PEAT MARWICK LLP
Chicago, Illinois
Date: December 30, 1997
