EXHIBIT 4.9
THIRD 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
incorporate certain changes requested by the Internal Revenue Service in order
to obtain an updated determination letter concerning the Plan's qualified status
under Sections 401(a), 401(k) and 4975(e)(7) of the Internal Revenue Code of
1986, as amended;
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, 1997, Section 1.05 is amended, as underlined, to read
as follows:
"1.05 Acquisition Loan
A loan (or extension of credit) used by the trustee to finance the
acquisition of Company Stock, which loan will constitute an extension of
credit to the Trust from a party-in-interest (ad defined in ERISA)."
2. Effective January 1, 1997, 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
10
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.
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
A Regular Employee is an Employee (whether full time or part time)
hired to fill a specific position on an indefinite basis and whose
position is reflected in the Employer's written annual budget as
being a permanent position that is eligible for participation in the
Plan."
3. Effective January 1, 1997, Section 1.21(a) is amended, as underlined, to
read as follows:
"(a) Compensation
For purposes of this Section, Compensation means Compensation
defined in Section 1.11, excluding only the exclusions described in
paragraphs (i) through (iv), and including deferrals under (a) Code
Section 402(e)(3) relating to a Code Section 401(k) arrangement; (b)
Code Section 125 relating to a cafeteria plan; (c) Code Section
403(b) relating to a tax sheltered annuity plan; (d) Code Section
408(h) relating to a simplified employee pension; and (e) Effective
January 1, 1998, Code Section 402(k) relating to a simple retirement
account. Compensation in excess of the Statutory Compensation Limit
will be disregarded. The definition of Compensation shall be limited
to Compensation earned during (i) the Determination Year for
purposes of Section 1.21(d)(2)(i) and (ii) the Lookback Year for
purposes of Sections 1.21(d)(2)(ii) and 1.21(j)."
4. Effective January 1, 1997, Section 3.04(a)(7) is amended, as underlined,
to read as follows:
"(7) Application of Forfeitures
11
Forfeitures from a Participant's Employee Stock Ownership Account
will be used to reduce Employee Stock Ownership Contributions in the
Plan Year in which the Forfeitures are determined to occur. To the
extent that a Participant's Employee Stock Ownership Account holds
more than one class of Employer Securities, Forfeitures shall be
made equally from each class of Employer Securities.
Notwithstanding the foregoing, the portion of a Participant's
account attributable to assets other than Company Stock acquired
with the proceeds of an Acquisition Loan shall be forfeited first."
5. Effective January 1, 1997, Section 4.05(a)(5) is amended, as underlined,
to read as follows:
"(5) Contribution Percentage Test
The Contribution Percentage Test is a test applied on a Plan Year
basis to determine whether a plan meets the requirements of Code
Section 401(m).
In each of the following tests, the Contribution Percentage for the
Highly Compensated Group for a Plan Year is compared with the
Contribution Percentage for the Non-highly Compensated Group for the
preceding Plan Year (or the current Plan Year if elected by the
Employer; provided, however, that if such an election is made, it
may not be changed except as provided by the Secretary of the
Treasury.)"
In the case of the first Plan Year of the Plan (if this is not a
successor plan within the meaning of Treasury Regulation
1.401(k)-1(d)(3)), the Contribution Percentage for the Non-highly
Compensated Group will be the Contribution Percentage for the
Non-highly Compensated Group for the first Plan Year or, if the
Employer elects to use 3% as the Deferral Percentage for the first
Plan Year, the Contribution Percentage that would result if the
Deferral Percentage for each Non-highly Compensated Participant were
3%.
The Contribution Percentage Test may be met by either satisfying the
General Contribution Percentage Test or the Alternative Contribution
Percentage Test.
The General Contribution Percentage Test is satisfied if the
Contribution Percentage for the Highly Compensated Group does not
exceed 125% of the Contribution Percentage for the Non-highly
Compensated Group.
The Alternative Contribution Percentage Test is satisfied if the
Contribution Percentage for the Highly Compensated Group does not
exceed the lesser of:
o The Contribution Percentage for the Non-highly Compensated
Group plus 2 percentage points, or
o The Contribution Percentage for the Non-highly Compensated
Group multiplied by 2.0.
12
If (i) one or more Highly Compensated Employees of the Employer or
any Related Employer are eligible to participate in both a Cash or
Deferred Arrangement and a plan which provides for Employee
After-tax Contributions or Matching Contributions, (ii) the Deferral
Percentage for all of the Highly Compensated Group does not satisfy
the General Deferral Percentage Test, and (iii) the Contribution
Percentage for all of the Highly Compensated Group does not satisfy
the General Contribution Percentage Test, then the Contribution
Percentage Test will be deemed to be satisfied only if the sum of
the Deferral Percentage and the Contribution Percentage for all of
the Highly Compensated Group does not exceed the Aggregate Limit. If
the Aggregate Limit is exceeded, the Plan shall satisfy the test for
multiple use of the alternative limitation as provided in Treas.
Reg. ss. 1.401(m)-2(c) in accordance with Section 4.05(a)(7).
The Plan will not fail to satisfy the Contribution Percentage test
merely because all of the Eligible Employees under the Plan for a
Plan Year are Highly Compensated Employees."
6. Effective January 1, 1997, Section 4.05(a)(7) of the Plan is amended, as
underlined, to read as follows:
"(7) Deferral Percentage Test
The Deferral Percentage Test is a test applied on a Plan Year basis
to determine whether a plan meets the requirements of Code Section
401(k).
In each of the following tests, the Deferral Percentage for the
Highly Compensated Group for a Plan Year is compared with the
Deferral Percentage for the Non-highly Compensated Group for the
preceding Plan Year (or the current Plan year if elected by the
Employer; provided, however, that if such an election is made, it
may not be changed except as provided by the Secretary of the
Treasury).
In the case of the first Plan Year of the Plan (if this is not a
successor plan within the meaning of Treasury Regulation
1.401(k)-1(d)(3)), the Deferral Percentage for the Non-highly
Compensated Group will be 3%, or, if elected by the Employer, the
actual Deferral Percentage for the Non-highly Compensated Group for
the first Plan Year.
The Deferral Percentage Test may be met by either satisfying the
General Deferral Percentage Test of the Alternative Deferral
Percentage Test.
The General Deferral Percentage Test is satisfied if the Deferral
Percentage for the Highly Compensated Group does not exceed 125% of
the Deferral Percentage for the Non-highly Compensated Group.
The Alternative Deferral Percentage Test is satisfied if the
Deferral Percentage for the Highly Compensated Group does not exceed
the lesser of:
13
o the Deferral Percentage for the Non-highly Compensated Group
plus 2 percentage points, or
o the Deferral Percentage for the Non-highly Compensated Group
multiplied by 2.0.
If (i) one or more Highly Compensated Employees of the Employer or
any Related Employer are eligible to participate in both a Cash or
Deferred Arrangement and a plan which provides for Employee
After-tax Contributions or Matching Contributions, (ii) the Deferral
Percentage for the Highly Compensated Group does not satisfy the
General Deferral Percentage Test, and (iii) the Contribution
Percentage for the Highly Compensated Group does not satisfy the
General Contribution Percentage Test, then the Deferral Percentage
Test will be deemed to be satisfied only if the sum of the Deferral
Percentage and the Contribution Percentage for the Highly
Compensated Group does not exceed the Aggregate Limit. If the
Aggregate Limit is exceeded, the Plan shall satisfy the test for
multiple use of the alternative limitation as provided in Treas.
Reg. ss. 1.401(m)-2(c)(3) by reducing the Deferral Percentage of
those Highly Compensated employees who also participate in an
arrangement that provides for After-tax Contributions or Matching
Contributions so that the limit is not exceeded, beginning with the
Highly Compensated Employee whose Deferral Percentage is the
highest. The amount by which each Highly Compensated Employee's
Deferral Percentage amount is reduced shall be treated as an Excess
Contribution. The Deferral Percentage and Contribution Percentage of
the Highly Compensated Employees are determined after:
o use of any Qualified Nonelective Contributions and Qualified
Matching Contributions to meet the Deferral Percentage Test;
o use of any Qualified Nonelective Contributions and Elective
Contributions to meet the Deferral Percentage Test;
o any corrective distribution or forfeiture of Excess Deferrals,
Excess Contributions or Excess Aggregate Contributions; and
o after any recharacterization of Excess Contributions required
without regard to multiple use of the alternative limitation.
The Plan will not fail to satisfy the Deferral Percentage test
merely because all of the Eligible Employees under the Plan for a
Plan Year are Highly Compensated Employees.
14
7. Effective January 1, 1997, Section 4.05(i) of the Plan is amended, as
underlined, to read as follows:
"(i) Aggregation of Plans
If the Employer or a Related Employer sponsors one or more other
plans which include a Cash or Deferred Arrangement, the Employer may
elect to treat any two or more of such plans as an aggregated single
plan for purposes of satisfying Code Sections 401(a)(4), 401(k) and
410(b). The Cash or Deferred Arrangements included in such
aggregated plans will be treated as a single Arrangement for
purposes of this Section. However, only those plans that have the
same plan year may be so aggregated.
If the Employer or a Related Employer sponsors one or more other
plans to which Employee After-tax Contributions or Matching
Contributions are made, the Employer may elect to treat any two or
more of such plans as an aggregated single plan for purposes of
satisfying Code Sections 401(a)(4), 401(m) and 410(b). However, only
those plans that have the same plan year may be so aggregated.
Any such aggregation must be made in accordance with Treasury
Regulation 1.401(k)-1(b)(3). For example, contributions and
allocations under the portion of a plan described in Code Section
4975(e)(7) (an ESOP) may not be aggregated with the portion of a
plan not described in Code Section 4975(e)(7) (a non-ESOP) for
purposes of determining whether the ESOP or non-ESOP satisfies the
requirements of Code Sections 401(a)(4), 401(k), 401(m) and 410(b).
To the extent that any Participant who is a Highly Compensated
Employee for the Plan Year is eligible to have Employer Elective
Contributions (or Qualified Non-Elective Contributions or Qualified
Matching Contributions, or both, if treated as Employer Elective
Contributions for the Actual Deferral Percentage Test) allocated to
his or her account under two (2) or more Cash or Deferred
Arrangements that are maintained by the Employer or a Related
Employer, such plans shall be aggregated for purposes of Code
Sections 401(a)(4), 401(k), 401(m) and 410(b). If a Highly
Compensated Employee participates in two (2) or more Cash or
Deferred Arrangements that have different plan years, all Cash or
Deferred Arrangements ending with or within the same calendar year
shall be treated as a single plan. Notwithstanding the foregoing,
certain plans shall be treated as separate if mandatorily
disaggregated under applicable Treasury regulations pursuant to Code
Section 401(k).
To the extent that this Plan is required to be aggregated with
another plan for purposes of satisfying Code Sections 401(k)(3) or
401(m)(2), then such plans shall be aggregated for all purposes
under Code Sections 401(a)(4) and 410(b). To the extent that this
Plan is permissively aggregated with another plan for purposes of
satisfying Code Sections 401(k)(3) or 401(m)(2), then such plans
shall be aggregated for all purposes under Code Sections 401(a)(4)
and 410(b). Plans that could be aggregated under Code Section 410(b)
but that are not actually aggregated
15
for a Plan Year for purposes of Code Section 410(b) may not be
aggregated for purposes of Code Sections 401(k) and 401(m)."
8. Effective January 1, 1997, Section 6.02 of the Plan is amended as
underlined to read as follows:
"6.02 Death Benefit
(a) Pre-Retirement Death Benefit
In the event of the death of a Participant prior to the date that he
begins to receive a retirement benefit under the Plan, if the
Participant has a Surviving Spouse and if a Beneficiary other than
the Participant's Surviving Spouse has not been designated pursuant
to a Qualified Election, the Participant's Surviving Spouse will be
entitled to receive a Qualified Survivor Annuity.
If a Surviving Spouse does not exist or if a Beneficiary other than
the Participant's Surviving Spouse has been designated pursuant to a
Qualified Election, the Participant's designated Beneficiary will be
entitled to receive the value of the Participant's Accrued Benefit.
(b) Post-Retirement Death Benefit
In the event of the death of a Retired Participant or a Disabled
Participant receiving a benefit, a benefit will be paid to the
Participant's Beneficiary or Surviving Spouse in accordance with the
form of benefit payment elected under the Plan.
(c) Commencement of Benefits.
Payments to a Participant's Beneficiary or Surviving Spouse shall
begin sixty days following the close of the Plan Year in which the
Participant dies. The Committee shall charge each payment to the
Participant's or Former Participant's Individual Account. Payments
shall continue until the death of the last survivor of the
Beneficiaries or until the Individual Account is paid in full,
whichever event shall occur first.
Notwithstanding any contrary provision, unless other Plan
distribution provisions require earlier distribution of the
Participant's Individual Account, if the Participant's Beneficiary
or Surviving Spouse elects, the Committee shall direct the Trustee
to commence distribution of the Participant's Account Balance
attributable to Employer Securities in the Participant's Employer
Stock Ownership Account no later than one (1) year after the close
of the Plan Year in which the Participant separates from Service
because of death. For purposes of this paragraph, Employer
Securities do not include any Employer Securities acquired with the
proceeds of an Exempt Loan until the close of the Plan Year in which
the borrower repays the Exempt Loan in full.
If the Participant dies after his distributions have commenced, the
Trustee shall continue to distribute the remaining portion of the
Participant's Account Balance at
16
least as rapidly as under the method of distribution used prior to
the Participant's death. If the Participant dies before distribution
commences, the Trustee shall complete distribution of the
Participant's or Former Participant's Account Balance by December 31
of the calendar year containing the fifth (5th) anniversary of the
Participant's death, except to the extent that the Beneficiary
elects to receive distributions under paragraphs (1) or (2) below:
(1) If any portion of the Participant's or Former Participant's
Nonforfeitable Account Balance is payable to a Beneficiary,
the Beneficiary may elect distributions over the life or over
a period certain not greater than the life expectancy of the
Designated Beneficiary commencing on or before December 31 of
the calendar year immediately following the calendar year in
which the Participant or Former Participant died;
(2) If the Beneficiary is the Participant's Surviving Spouse, the
date distributions must begin under paragraph (1) above shall
not be earlier than the later of: (i) December 31 of the
calendar year immediately following the calendar year in which
the Participant died; and (ii) December 31 of the calendar
year in which the Participant would have attained age seventy
and one-half (70 1/2) years. If the Participant has not made
an election pursuant to this Section by the time of death, the
Beneficiary must elect the method of distribution no later
than the earlier of: (i) December 31 of the calendar year in
which distributions must begin under this Section; or (ii)
December 31 of the calendar year which contains the fifth
(5th) anniversary of the date of death of the Participant. If
the Participant has no Beneficiary, or if the Beneficiary does
not elect a method of distribution, distribution of the
Account Balance of the Participant must be completed by
December 31 of the calendar year containing the fifth (5th)
anniversary of the Participant's death.
(3) If the Surviving Spouse is the Beneficiary of any portion of a
deceased Participant's benefits under the Plan, the Surviving
Spouse shall be permitted to direct that this distribution of
benefits commence at a reasonable time following the death of
the Participant or Former Participant under applicable
Treasury regulations.
(4) If the Surviving Spouse dies after the Participant, but before
payments to the Spouse begin, the preceding provisions of this
Section, with the exception of paragraph (2), shall be applied
as if the Surviving Spouse had been the Participant."
9. Effective January 1, 1997, Section 7.01 is amended, as underlined, to read
as follows:
"7.01 Limitation on Annual Additions
The amount of the Annual Addition which may be allocated under this Plan
to any Participant's Account as of any Allocation Date will not exceed the
Defined Contribution
17
Limit (based upon his Aggregate Compensation up to such Valuation Date)
reduced by the sum of any allocations of annual additions made to
Participant's Accounts under this Plan as of any preceding Allocation Date
within the Limitation Year. Such reductions shall be made in the event
that an excess annual addition arises from contributions to the Plan based
on estimated annual compensation, the allocation of forfeitures, a
reasonable error occurs in determining the amount of elective deferrals
under Code Section 402(g)(3) or under other facts and circumstances that
the Commissioner finds justify the availability of relief under Treas.
Reg. ss. 1.415-6(b)(6).
If the Annual Addition under this Plan on behalf of a Participant is to be
reduced as of any Allocation Date as a result of the next preceding
paragraph, the reduction will be, to the extent required, effected by
first reducing Participant contributions (which increase the annual
addition), then Forfeitures (if any), and then Employer contributions to
be allocated under this Plan on behalf of the Participant as of the
Allocation Date.
Any necessary reduction will be made as follows:
(a) The amount of the reduction consisting of nondeductible Participant
contributions will be paid to the Participant as soon as
administratively feasible.
(b) The amount of the reduction consisting of any other Participant
contributions will be paid to the Participant as soon as
administratively feasible.
(c) The amount of the reduction consisting of Forfeitures will be
allocated and reallocated to other Accounts in accordance with the
Plan formula for allocating Forfeitures to the extent that such
allocations do not cause the additions to any other Participant's
Accounts to exceed the lesser of the Defined Contribution Limit or
any other limitation provided in the Plan.
(d) The amount of the reduction consisting of Employer contributions
will be allocated and reallocated to other Accounts in accordance
with the Plan formula for Employer Contributions to the extent that
such allocations do not cause the additions to any other
Participant's Accounts to exceed the lesser of the Defined
Contribution Limit or any other limitation provided in the Plan.
(e) To the extent that the reductions described in paragraph (d) cannot
be allocated to other Participant's Accounts, the reductions will be
allocated to a suspense account as Forfeitures and held therein
until the next succeeding Allocation Date on which Forfeitures could
be applied under the provisions of the Plan. All amounts held in a
suspense account must be applied as Forfeitures before any
additional contributions, which would constitute annual additions,
may be made to the Plan. If the Plan terminates, the suspense
account will revert to the Employer to the extent it may not be
allocated to any Participant's Accounts.
18
(f) If a suspense account is in existence at any time during a
Limitation Year pursuant to this Section, it will not participate in
the allocation of the Trust Fund's investment gains and losses.
(g) If no more than one-third of the employer contributions to the Plan
are allocated to Participants who are Highly Compensated Employees,
the limitations under this Section shall not apply to (i)
forfeitures of Employer Securities under such Plan if the Employer
Securities were acquired with the proceeds of an Exempt Loan, or
(ii) employer contributions to the Plan which are deductible under
Code Section 404(a)(9)(B) and charged against the Participant's
Account."
10. Effective January 1, 1997, Section 7.04 is amended, as underlined, to read
as follows:
"7.04 Effect of Top-Heavy Status
(a) General
Notwithstanding the provisions of Section 7.03, "1.0" will be
substituted for "1.25" wherever it appears in Sections 7.03(h) and
7.03(k) for any Limitation Year in which the Plan is found to be
Top-Heavy for the Plan Year which coincides with or ends within such
Limitation Year.
(b) Non-application
If the Plan is not determined to be Super Top-Heavy, then for the
Plan Year which coincides with or ends within a Limitation Year, the
following will apply:
(1) Any Non-Key Employee who is a Participant in both this Plan
and a defined benefit plan maintained by the Employer or a
Related Employer will be entitled to a minimum accrued benefit
under the defined benefit plan equal to the greater of the
accrued benefit provided under the defined benefit plan or a
monthly benefit in the form of a straight life annuity (with
no ancillary benefits) commencing at normal retirement date
equal to the Participant's average monthly compensation (which
means the average rate of Aggregate Compensation during the
five consecutive years, as defined for purposes of determining
average monthly compensation, in which the Participant had the
highest Aggregate Compensation) multiplied by the lesser of
(A) 3% for each year of benefit service performed while
actually participating in the plan during a Plan Year in which
the plan is determined to be Top-Heavy, or (B) 30%.
A Participant will not be required to be employed on the last
day of a Plan Year in order to be entitled to the benefit
provided by this Section 7.04(b). The defined benefit plan may
not satisfy the requirements of this Section 7.04(b) through
Employer contributions to Social Security.
(2) Section 7.04(a) will not apply for such Limitation Year.
19
(c) Minimum Allocations.
If a defined benefit plan maintained by the Employer which benefits
a Key Employee depends on this Plan to satisfy the nondiscrimination
rules of Code Section 401(a)(4) or the coverage rules of Code
Section 410 (or another plan benefiting the Key Employee so depends
on the defined benefit plan), each Non-Key Employee shall receive a
top heavy minimum allocation of five percent (5%) of the Non-Key
Employee's Compensation regardless of the contribution rate for the
Key Employee. The minimum allocation under this Section shall be
provided to each Non-Key Employee who is a Participant and is
employed by the Employer on the last day of the Plan Year, whether
or not the Participant has been credited with one thousand (1,000)
Hours of Service for the Plan Year. The minimum allocation under
this Section shall not be provided to any Participant who was not
employed by the Employer on the last day of the Plan Year. The
provisions of this Section shall not apply to any Participant to the
extent the Participant is covered under any other plan or plans of
the Employer under which the minimum allocation or benefit
requirements under Code Section 416(c)(1) or (c)(2) are met for the
Participant."
11. Effective January 1, 1997, Section 12.01(c) is amended, as underlined, to
read as follows:
"(c) Acquisition Loan. The Trustee is expressly authorized to enter into
an Acquisition Loan transaction; provided, however, that the loan
shall be primarily for the benefit of the Plan Participants. The
following terms and conditions apply to any Acquisition Loan.
(i) The Trustee shall, within a reasonable period of time, use the
proceeds of any Acquisition Loan:
(A) to acquire Company Stock described in Section 1.10(b)
(i), (ii) or (iii);
(B) to repay the Acquisition Loan; or
(C) to repay a prior Acquisition Loan.
(ii) Any Acquisition Loan shall provide that the creditor is
without recourse against the Plan and Trust. The Acquisition
Loan shall further provide that no person entitled to payment
under the Acquisition Loan shall have any rights to the assets
of the Plan and Trust other than:
(A) the collateral given under the Acquisition Loan;
(B) contributions (other than contributions of Company
Stock) made by the Employer to meet the repayment
requirements of the Acquisition Loan; or
20
(C) earnings attributable to:
(1) the Company Stock pledged as collateral for such
loan; or
(2) the Employer contributions described in the
preceding paragraph (B).
(iii) Any Acquisition Loan shall provide that payments made on the
loan by the Plan shall not exceed for any Plan Year an amount
equal to the sum of Employer Contributions and Plan earnings
for the current Plan Year, plus the amounts in prior years,
less the sum of the note payment for prior years. The Plan
Administrator shall maintain separate accounting for such
contributions and earnings.
(iv) Collateral for the Acquisition Loan shall be restricted to
Company Stock acquired with the proceeds of the Acquisition
Loan or Company Stock acquired with a prior Acquisition Loan
which prior Acquisition Loan is repaid with the proceeds of
the Acquisition Loan.
(v) Any Acquisition Loan shall provide that in the event of
default, the value of the Plan assets transferred in
satisfaction of the Acquisition Loan must not exceed the
amount of the default. If the lender is a Disqualified Person,
the Acquisition Loan shall provide for the transfer of Plan
assets upon default only upon and to the extent of the failure
of the Plan to meet the repayment schedule of the loan.
(vi) Any Acquisition Loan shall provide for a reasonable rate of
interest, taking into account all relevant factors.
(vii) Any Acquisition Loan shall provide for a release from
encumbrance of shares of Company Stock held as collateral as
of each Anniversary Date equal to the number of encumbered
shares of Company Stock held immediately before the release,
multiplied by a fraction. The numerator of the fraction is the
amount of principal and interest paid during the Plan Year.
The denominator of the fraction is the sum of the principal
and interest to be paid in all future years without taking
into account any possible extensions of the loan. If a
variable rate of interest is used, the calculation of the
denominator shall be based upon the rate applicable as of the
end of the Plan Year in question. Release of shares of more
than one class shall be made on a pro rata basis applying such
fraction.
(viii)Any Acquisition Loan shall call for a definitely determinable
period of repayment and may not be payable at the demand of
any person except in the case of default.
21
(ix) The Trustee shall comply with all requirements under Code
Section 4975 and the applicable Treasury regulations to assure
that the loan qualifies as an Acquisition Loan.
(x) Notwithstanding that this Plan ceases to be an employee stock
ownership plan, Company Stock acquired with the proceeds of an
Acquisition Loan will continue, after the Trustee repays the
loan, to be subject to the provisions of Treasury Regulations
Sections 54.4975-7(b)(4), (10), (11) and (12) relating to put,
call or other options and to buy-sell or similar arrangements,
except to the extent those regulations are inconsistent with
Code Section 409(h)."
IN WITNESS WHEREOF, this instrument has been executed by the duly
authorized and empowered officer of the Employer, this 3rd day of May, 2000.
EMPLOYER:
CHEMFIRST INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
------------------------
TRUSTEE:
XXXXXXX XXXXXX TRUST COMPANY
By: /s/ Xxxx XxXxxxxx
------------------------
22
