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EXHIBIT 4.7
FIRST AMENDMENT TO
CHEMFIRST, INC.
401(k) AND EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
THIS AMENDMENT, effective JANUARY 1, 1998, by and between CHEMFIRST,
INC., a Business Corporation, having its principal office in Jackson,
Mississippi (hereinafter referred to as "Employer"), and XXXXXXX XXXXXX TRUST
COMPANY (hereinafter sometimes referred to as "Trustee");
R E C I T A L S:
A. WHEREAS, the Employer has previously established the ChemFirst, Inc.
401(k) and Employee Stock Ownership Plan and Trust ("Plan and Trust") for the
benefit of those employees who qualify thereunder and for their beneficiaries;
and
B. WHEREAS, the Employer desires to amend the Plan and Trust to (i)
clarify the definition of Eligible Employee and (ii) eliminate the service
requirement for purposes of eligibility and entry in the Plan;
NOW, THEREFORE, pursuant to Section 10.01 of the Plan and Trust, the
following amendment is hereby made and shall be effective as of JANUARY 1, 1998:
1. SECTION 1.13 OF THE PLAN IS AMENDED AS UNDERLINED TO READ AS FOLLOWS:
1.13 Eligible Employee Classification
An Eligible Employee Classification is a classification of Employees,
the members of which are eligible to participate in the Plan. All
Employees who are classified as "Regular Employees" are eligible to
participate in the Plan.
2. SECTION 1.15 OF THE PLAN IS AMENDED AS UNDERLINED TO READ AS FOLLOWS:
1.15 Employee
(a) In General
An Employee is any person who is employed by the Employer or a
Participating Employer.
(b) Leased Employee
A Leased Employee means any person who, pursuant to an
agreement between the Employer or any Related Employer
("Recipient Employer") and any other person ("leasing
organization"), has performed services for the Recipient
Employer on a substantially full-time basis for a period of at
least one year and such services are performed under the
primary direction or control of the Recipient Employer.
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Any Leased Employee will be treated as an Employee of the
Recipient Employer; however, contributions or benefits
provided by the leasing organization which are attributable to
the services performed for the Recipient Employer will be
treated as provided by the Recipient Employer. If all Leased
Employees constitute less than 20% of the Employer's
non-highly-compensated work force within the meaning of Code
Section 414(n)(1)(C)(ii), then the preceding sentence will not
apply to any Leased Employee if such Employee is covered by a
money purchase pension plan ("Safe Harbor Plan") which
provides: (1) a nonintegrated employer contribution rate of at
least 10% of compensation, (2) immediate participation, and
(3) full and immediate vesting.
Years of Eligibility Service for purposes of eligibility to
participate in the Plan and Years of Vesting Service for
purposes of determining a Participant's Vested Percentage
include service by an Employee as a Leased Employee.
(c) Regular Employee
Regular Employee is an Employee (whether full time or part
time) hired to fill a specific position on a permanent basis
and for whom the Employer annually budgets compensation and
benefits.
3. SECTION 1.27 OF THE PLAN IS AMENDED IN ITS ENTIRETY TO READ AS FOLLOWS:
1.27 One Year Break-in-Service
One Year Break-in-Service means any 365-day period following a
Participant's Date of Termination in which an Employee does not
complete at least one (1) Hour of Service.
4. SECTION 1.45 OF THE PLAN IS AMENDED IN ITS ENTIRETY TO READ AS FOLLOWS:
1.45 Year of Service
(a) Crediting Years of Service. Years of Service are determined
using the Elapsed Time Method as specified in this Section.
(1) Elapsed Time Method. The Elapsed Time Method shall be
used to compute Years of Eligibility Service and
Years of Vesting Service for all Regular Employees.
Under the Elapsed Time Method, Years of Service are
based upon an Employee's Elapsed Time of employment
irrespective of the number of hours actually worked
during such period; a Year of Service (including a
fraction thereof) will be credited for each completed
365 days of Elapsed Time which need not be
consecutive. The following terms are used in
determining Years of Service under the Elapsed Time
Method:
o Date of Severance (Termination) - means the
earlier of (A) the actual date an Employee
resigns, is discharged, dies or retires, or
(B) the first anniversary of the date an
Employee is absent from work (with or
without pay) for any other reason, e.g.,
disability, vacation, leave of absence,
layoff, etc.
o Elapsed Time - means the total period of
service which has elapsed between a
Participant's Employment Commencement Date
and Date of Termination including Periods of
Severance where a One Year Break-in-Service
does not occur.
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o Employment Commencement Date - means the
date an Employee first performs one Hour of
Service for the Employer.
o One Year Break-in-Service - means any
365-day period following an Employee's Date
of Termination as defined above in which the
Employee does not have at least one Hour of
Service.
o Period of Severance - is the time between
the actual Date of Severance as defined
above and the subsequent date, if any, on
which the Employee performs an Hour of
Service.
All periods of employment will be aggregated
including Periods of Severance unless there is a One
Year Break-in-Service.
Years of Eligibility Service for purposes of determining
eligibility to participate in the Plan and Years of Vesting
Service for purposes of determining a Participant's Vested
Percentage include service with any organization which is a
Related Employer with respect to the Employer.
(b) For Eligibility Purposes. All Regular Employees who have
completed at least one (1) hour of service shall be eligible
to participate in the Plan.
(c) For Vesting Purposes
Years of Service for purposes of computing a Participant's
Vested Percentage are referred to as Years of Vesting Service
and are determined using the Elapsed Time Method. For purposes
of determining an Employee's Years of Vesting Service, an
Employee shall receive credit for the aggregate of all time
periods commencing on an Employee's Employment Commencement
Date, including the Re-Employment Commencement Date, and
ending on the date a Break-in-Service begins. An Employee also
shall receive credit for any Period of Severance of less than
365 days. A Year of Vesting Service (including a fraction
thereof) will be credited for each completed 365 days of
Elapsed Time which need not be consecutive. In computing an
Employee's Years of Vesting Service, the following rules shall
apply:
(i) Service shall be disregarded in computing a
Participant's Years of Vesting Service under the Plan
for Plan Years beginning prior to March 1, 1985, for
which the Employee was eligible to make basic
contributions (after-tax contributions) but declined
to make any such contributions to the Plan, if such
period occurred prior to his initial date of
participation in the Plan.
(ii) Service shall be disregarded in computing a
Participant's Years of Vesting Service for Plan Years
beginning on or after March 1, 1985, but before
October 1, 1993, for which the Employee was eligible
to direct the Employer to make Salary Deferral
Contributions on his behalf but declined to direct
the Employer to make any such contributions to the
Plan; and if such period occurred prior to his
initial date of participation in the Plan.
(iii) Service prior to July 1, 1974, shall be disregarded
in computing a Participant's Years of Vesting
Service.
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(d) Related Employers
Years of Eligibility Service for purposes of determining
eligibility to participate in the Plan and Years of Vesting
Service for purposes of determining a Participant's Vested
Percentage include service with any organization which is a
Related Employer with respect to the Employer.
(e) Loss of Service
If a Participant who is zero percent (0%) vested terminates
employment and incurs at least 5 consecutive One Year
Breaks-in-Service, he or she will lose all prior Eligibility
Service and Vesting Service.
(f) Change in Computation Method
With respect to the Employee Stock Ownership Plan Accounts
merged hereunder, for purposes of determining a Participant's
Years of Vesting Service in those Accounts as of December 31,
1996, the method used to calculate Years of Vesting Service
shall be the method described in Section 2.14 of the First
Mississippi Corporation Employee Stock Ownership Plan prior to
August 1, 1996, or in this Section 1.45, whichever will result
in the higher vested percentage.
5. SECTION 2.01 OF THE PLAN IS AMENDED IN ITS ENTIRETY TO READ AS FOLLOWS:
2.01 Participation
All Regular Employees are eligible to participate in the Plan on the
Regular Employee's Employment Commencement Date.
Employees not eligible to participate in the Plan are:
o Collective Bargaining Employees. Each Employee who is a member
of a collective bargaining unit shall not be eligible to
participate in this Plan unless the collective bargaining
agreement provides otherwise. An Employee is a member of a
collective bargaining unit if the Employee is included in a
unit of Employees covered by an agreement which the Secretary
of Labor finds to be a collective bargaining agreement between
Employee representatives and one or more employers if there is
evidence that retirement benefits were the subject of good
faith bargaining between the Employee representatives and the
employer or employers. The term "Employee representatives"
does not include an organization of which more than one-half
(1/2) the members are owners, officers, or executives of the
Employer.
o Leased Employees.
An Employee who is otherwise eligible to participate may irrevocably
elect not to participate in the Plan. Any election under this paragraph
must be in writing and according to guidelines established by the Plan
Administrator.
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IN WITNESS WHEREOF, this instrument has been executed by the duly
authorized and empowered officers of the Employer, this 31st day of December,
1998.
EMPLOYER:
CHEMFIRST, INC.
By: /s/ Xxxxx X. Xxxxx
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TRUSTEE:
XXXXXXX XXXXXX TRUST COMPANY
By: /s/ X. Xxxxx
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