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Exhibit 4.10
SECOND AMENDMENT TO
CHEMFIRST INC.
401(k) SAVINGS AND EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
THIS AMENDMENT, effective as specifically stated herein, 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) Savings 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; (ii) increase the cashout
distribution threshold to $5,000; and (iii) incorporate those special trust
provisions requested by the Plan Trustee that are described in the Addendum &
Letter Agreement attached hereto, for informational purposes only, as Exhibit
A;
NOW, THEREFORE, pursuant to Section 10.01 of the Plan and Trust, the
following amendment is hereby made and shall be effective as specifically
stated herein:
1. EFFECTIVE JANUARY 1, 1999, 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. Any reference to Employee within this
Agreement is assumed to mean an Employee who is classified as a
Regular Employee.
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2. EFFECTIVE JANUARY 1, 1997, SECTION 1.34(e) OF THE PLAN IS AMENDED AS
UNDERLINED TO READ AS FOLLOWS:
1.34 Qualified Annuity Definitions
* * * *
(e) Qualified Survivor Annuity
A Qualified Survivor Annuity which a Surviving Spouse will be
eligible to receive under the provisions of Section 6.02
means a monthly benefit payable for the remaining lifetime of
the Surviving Spouse. The amount of the Qualified Survivor
Annuity benefit will be the amount of benefit which can be
purchased from an Insurer with the Participant's Vested
Accrued Benefit.
If the Participant's Vested Accrued Benefit is $3,500 ($5,000
for Plan Years beginning after August 5, 1997) or less, the
Plan Administrator will direct the immediate distribution of
the Participant's Vested Accrued Benefit to the Surviving
Spouse. If the Participant's Vested Accrued Benefit at the
time of any distribution exceeds $3,500 ($5,000 for Plan
Years beginning after August 5, 1997), the Vested Accrued
Benefit at any later time will be deemed to exceed $3,500
($5,000 for Plan Years beginning after August 5, 1997). The
Surviving Spouse may elect to receive the Qualified Survivor
Annuity as a lump sum.
3. EFFECTIVE JANUARY 1, 1997, SECTION 5.05 OF THE PLAN IS AMENDED AS
UNDERLINED TO READ AS FOLLOWS:
5.05 Form of Benefit Payment
Subject to the provisions of Section 5.06, the Plan Administrator will
direct the Trustee to make the payment of any benefit provided under
this Plan upon the event giving rise to such benefit within 60 days
following the receipt of a Participant's written request for the
payment of benefits on a form provided by the Plan Administrator. The
Plan Administrator may temporarily suspend such processing in the
event of unusual or extraordinary circumstances such as the conversion
of Plan records from one recordkeeper to another.
The form of benefit will be determined as follows:
(a) a Participant who is not married on the date benefits are to
commence will be provided a Qualified Life Annuity, unless a
lump sum payment is elected, under a Qualified Election, by
the Participant within the 90-day period which ends on his
benefit commencement date.
(b) a Participant who is married on the date benefits commence
will be provided a Qualified Joint and Survivor Annuity
unless a lump sum payment is elected, under a Qualified
Election, by the Participant within the 90-day period which
ends on his benefit commencement date.
Within the 90-day period which ends on a married Participant's
expected benefit commencement date, the Plan Administrator will
provide each Participant with a written explanation of:
(a) the terms and conditions of a Qualified Joint and Survivor
Annuity;
(b) the Participant's right to make and the effect of a Qualified
Election to waive the Qualified Joint and Survivor Annuity
form of benefit;
(c) the rights of a Participant's spouse; and
(d) the right to make, and the effect of, a revocation of a
previous Qualified Election to waive the Qualified Joint and
Survivor Annuity.
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Notwithstanding the above, if a terminated Participant's Vested
Accrued Benefit is $3,500 ($5,000 for Plan Years beginning after
August 5, 1997) or less, such Participant's Vested Accrued Benefit
shall be payable in a lump sum of the entire amount of his Vested
Accrued Benefit. If the value of his Vested Accrued Benefit at the
time of any distribution exceeds $3,500 ($5,000 for Plan Years
beginning after August 5, 1997), the value of his Vested Accrued
Benefit at any later time will be deemed to also exceed $3,500 ($5,000
for Plan Years beginning after August 5, 1997).
Upon request, the Participant may receive his benefit paid in a series
of substantially equal annual or more frequent installments from the
Trust Fund over a period certain not extending beyond the end of the
period measured by the joint life and last survivor expectancy of the
Participant and his spouse. A Participant may elect to receive an
installment distribution in the form of a Nontransferable Annuity
Contract. The Plan Administrator and the Trustee will have the power
to establish rules and guidelines as deemed necessary or appropriate
with regard to the payment of benefits under the installment payment
form.
Notwithstanding the foregoing, if Company Stock acquired with the
proceeds of an Acquisition Loan available for distribution consist of
more than one class, a distributee must receive substantially the same
proportion of each class. A Participant entitled to a distribution
under this Section shall have the right to demand that all payments
under the foregoing paragraphs be made in Company Stock or in cash for
fractional shares to the extent his or her Accounts are invested in
Company Stock. A Participant's benefits attributable to Company Stock
may be paid in whole or in part in cash.
4. EFFECTIVE JANUARY 1, 1997, SECTION 7.02(b) OF THE PLAN IS AMENDED BY
ADDING THE FOLLOWING SUBSECTION TO READ AS FOLLOWS:
7.02 (b) Where Employer Maintains a Qualified Defined Benefit Plan
* * * * *
(4) For Plan Years beginning after December 31, 1999,
the combined plan limits of Code Section 415(e)
shall no longer apply.
5. EFFECTIVE JANUARY 1, 1997, SECTION 7.03(a) OF THE PLAN IS AMENDED BY
ADDING THE FOLLOWING PARAGRAPH TO READ AS FOLLOWS:
7.03 Definitions Applicable to Article 7
* * * * *
Notwithstanding the foregoing, in the case of a Participant (i) who is
permanently and totally disabled (as provided in Code Section
415(c)(3)(C), (ii) who is not an eligible Highly Compensated Employee,
and (iii) with respect to whom the Employer elects to have this
paragraph apply, the term Aggregate Compensation for purposes of this
section shall mean the Aggregate Compensation the Participant would
have received for the Plan Year if the Participant had been paid at
the rate of Aggregate Compensation paid immediately before becoming
permanently and totally disabled. This subsection shall apply only if
contributions made with respect to amounts treated as Aggregate
Compensation under this paragraph are nonforfeitable when made.
6. EFFECTIVE JANUARY 1, 1997, SECTION 7.03(j) OF THE PLAN IS AMENDED IN
ITS ENTIRETY TO READ AS FOLLOWS:
7.03 Definitions Applicable to Article 7
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(j) Defined Contribution Limit
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The Defined Contribution Limit for a given Limitation Year is equal to
the lesser of (1) the Defined Contribution Compensation Limit, which
is 25% of Aggregate Compensation applicable to the Limitation Year, or
(2) the Defined Contribution Dollar Limit, which is $30,000. If a
short Limitation Year is created because of an amendment changing the
Limitation Year to a different 12 consecutive month period, the
Defined Contribution Dollar Limit is multiplied by a fraction, the
numerator of which is equal to the number of months in the short
Limitation Year and the denominator of which is 12.
7. EFFECTIVE JANUARY 1, 1997, ARTICLE 11 IS AMENDED BY ADDING SECTION
11.17 TO READ AS FOLLOWS:
11.17 Special Rules Concerning Trustee Responsibilities
Notwithstanding the foregoing sections of this Article 11, the
following provisions regarding the investment of Plan assets and the
Trustee's duties and responsibilities thereto shall override any Plan
provision to the contrary:
(a) Investments.
1. Notwithstanding the provisions of Section 11.04
above, except as provided below, the Plan
Administrator shall have all power over and
responsibility for the management, disposition, and
investment of the Trust assets, and the Trustee
shall comply with proper written directions of the
Plan Administrator concerning those assets. Except
to the extent required by ERISA, the Trustee shall
have no duty or responsibility to review, initiate
action, or make recommendations regarding Trust
assets and shall retain assets until directed in
writing by the Plan Administrator to dispose of
them.
A. As permitted under the Plan, each
Participant and/or beneficiary may have
investment power over the account
maintained for him or her, and may direct
the investment and reinvestment of assets
of the account among the options authorized
by the Plan Administrator. The Trustee
shall have no duty or responsibility to
review or make recommendations regarding
investments made at the direction of the
Plan Administrator or Participant and shall
be required to act only upon receipt of
proper written directions.
B. As permitted under the Plan, the Plan
Administrator may appoint an investment
manager or managers within the meaning of
section 3(38) of ERISA to direct, control
or manage the investment of all or a
portion of the Trust assets, as provided in
sections 3(38) and 403(a)(2) of ERISA.
2. In its administration of the Trust Fund, the Trustee
shall have and exercise whatever powers are
necessary to discharge its obligations and exercise
its rights under the Trust Agreement. Subject to the
direction of the Plan Administrator, or the person
authorized to make investment decisions (the
"Authorized Person"), the Trustee shall have full
power and authority with respect to property held in
the Trust Fund to exercise all such rights and
privileges, including, without limitation, the
following:
A. To deposit securities in a security
depository and permit the securities so
deposited to be held in the name of the
depository's nominee, and to deposit
securities issued or guaranteed by the U.S.
Government or any agency or instrumentality
thereof, including securities evidenced by
book entry rather than by certificate, with
the U.S. Department of the Treasury, a
Federal Reserve Bank or other appropriate
custodial entity, in the same account as
the Trustee's own property, provided the
Trustee's records and accounts show that
such securities are assets of the Trust
Fund;
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B. To deliver to the Administrator, or the
person or persons identified by the
Administrator, proxies and powers of
attorney and related informational
material, for any shares or other property
held including Employer Securities in the
Trust. Subject to the provisions of Section
11.17(a)(2)(C), the Administrator shall
have responsibility for instructing the
Trustee as to voting such shares and the
tendering of such shares, by proxy or in
person, except to the extent such
responsibility is delegated to another
person, under the terms of the Plan or
Trust Agreement or under an agreement
between the named fiduciary of the Plan and
an investment manager, in which case such
persons shall have such responsibility. The
Trustee may use agents to effect such
delivery to the Administrator or the person
or persons identified by the Administrator.
In no event shall the Trustee be
responsible for the voting or tendering of
shares of securities held in the Trust or
for ascertaining or monitoring whether, or
how, proxies are voted or whether the
proper number of proxies is received.
C. In addition to the provisions of Section
12.01(e) of the Plan, all voting rights
with respect to shares of Company Stock
held in the Trust Fund and allocated to
Participants' Accounts shall be exercised
by the Trustee in such manner as may be
directed by the respective Participant
(which term, for purposes of this
subsection C, shall include the beneficiary
of a deceased Participant and any alternate
payee for whom an account has been
established with an interest in Company
Stock). Any shares of Company Stock in the
Trust Fund that are allocated to
Participants who fail to give directions to
the Trustee shall be voted by the Trustee
in the same proportion as the Shares for
which voting instructions have been
received, subject to the power of the
Administrator to direct the Trustee to vote
such shares in a different manner, if the
Administrator determines that such action
is consistent with its fiduciary
obligations under ERISA. The Administrator
may establish such rules and guidelines as
it deems necessary to properly effect the
provisions of this section;
D. In addition to the provisions of Section
11.04(h) of the Plan, to register Trust
Fund property in the Trustee's own name, in
the name of a nominee or in bearer form,
provided the Trustee's records and accounts
show that such property is an asset of the
Trust Fund;
(b) Settlement of Accounts. In addition to the provisions of
Section 11.08 of the Plan, the Trustee's account shall be
deemed approved upon receipt by the Trustee of the Employer's
written approval of the account or upon the passage of the
sixty day period of time after receipt by the Employer,
except for any matters covered by written objections that
have been delivered to the Trustee by the Employer and for
which the Trustee has not given an explanation or made an
adjustment satisfactory to the Employer.
(c) Company Stock. In addition to the provisions of Section 12.01
of the Plan:
1. No assets of the Trust Fund shall be invested in the
securities of the Employer or its affiliates unless
the Administrator determines that the securities are
exempt from registration under the federal
Securities Act of 1933, as amended, and are exempt
from registration or qualification under the
applicable state law, and of any other applicable
blue sky law, or in the alternative, that the
securities have been so registered and/or qualified.
The Administrator shall also specify what
restrictive legend on transfer, if any, is required
to be set forth on the certificates for the
securities and the procedure to be followed by the
Trustee to effectuate a resale of such securities.
The Administrator shall not direct the investment in
"employer securities" or "employer real property",
within the meaning of section 407 of ERISA, if such
investment
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would be prohibited by ERISA. The Administrator
shall only direct the investment of Trust funds into
securities of the Employer or an affiliate (i) if
those securities are traded on an exchange
permitting a readily ascertainable fair market
value, or (ii) if the Administrator shall have
obtained a current valuation by a qualified
independent appraiser.
2. The Employer represents and warrants that it will
take all responsibility (and hereby assumes all
liability for the failure) to notify Participants of
any limitations on investment directions necessary
or appropriate to comply with federal securities
laws (including the Exchange Act and the 1933 Act),
including but not limited to the frequency of
investment changes by certain officers and
shareholder-employees pursuant to Section 16(a) and
the volume of trading in Company Stock pursuant to
Rule l0b-6. Consequently the Trustee shall have no
liability to a Participant, and beneficiary, or the
Employer for carrying out instructions relating to
the acquisition or disposition of Company Stock
regardless of whether those instructions subject
such person or the Employer to any liability.
The Employer represents and warrants that either the
percentage of the issued and outstanding class of
equity security registered under section 12 of the
Exchange Act which is Company Stock owned by the
Plan (the "Plan Percentage") is less than 4.5% or
that the Plan and its prior trust have complied with
all notice and filing requirements imposed by
federal securities laws with regard to Company
Stock. The Employer covenants that it will (a)
notify the Trustee in writing within 5 business days
following any date as of which the Plan Percentage
equals or exceeds 4.5%, (b) monitor the Plan
Percentage on a daily basis so long as the Plan
Percentage is at least 4.5%, (c) notify the Trustee
in writing within 5 business days following any date
as of which the Plan Percentage equals or exceeds 5%
and, if applicable, 10%, and (d) provide monthly
written reports to the Trustee disclosing the Plan
Percentage. The foregoing monitoring and
notification requirements shall cease during any
month when the Plan Percentage is below 4.5% for
each day of the month. The provisions of this
Section shall survive the termination of this Trust
Agreement.
3. The election to purchase stock from a participant as
described in Section 12.05 of the Plan and Trust,
shall be the exclusive right and option of the Plan
Administrator and the Trustee shall be responsible
only for following the directions of the Plan
Administrator.
(d) Resignation or Removal of Trustee. Notwithstanding the
provisions of Section 11.14, if either party has given notice
of Trustee removal or resignation as provided under Section
11.14 above, and upon the expiration of the advance notice
period no other successor Trustee has been appointed and has
accepted such appointment, this provision shall serve as (i)
notice of appointment of the Chief Executive Officer of the
Employer as Trustee and (ii) as acceptance by that person of
that appointment.
(e) Applicable Law. Notwithstanding the provisions of Section
8.04, the Trust will be administered in the State of
California, and its validity, construction, and all rights
hereunder shall be governed by ERISA and, to the extent not
preempted, by the laws of California. If any provision of
this Agreement shall be invalid or unenforceable, the
remaining provisions shall continue to be fully effective.
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IN WITNESS WHEREOF, this instrument has been executed by the duly
authorized and empowered officer of the Employer, this 1st day of July, 1999.
EMPLOYER:
CHEMFIRST INC.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Vice President
TRUSTEE:
XXXXXXX XXXXXX TRUST COMPANY
By: /s/ X. Xxxxx
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