-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KK3WgbRpavsVgBXKwMTSwEc3ILIlmhw4mqC3dqEcew2xmWaKxk0hqj9EiiLjAwnV +x8v+b3UypokLDxc/V05gA== /in/edgar/work/20000808/0000007084-00-000035/0000007084-00-000035.txt : 20000921 0000007084-00-000035.hdr.sgml : 20000921 ACCESSION NUMBER: 0000007084-00-000035 CONFORMED SUBMISSION TYPE: POS EX PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000808 EFFECTIVENESS DATE: 20000808 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARCHER DANIELS MIDLAND CO CENTRAL INDEX KEY: 0000007084 STANDARD INDUSTRIAL CLASSIFICATION: [2070 ] IRS NUMBER: 410129150 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: POS EX SEC ACT: SEC FILE NUMBER: 333-42612 FILM NUMBER: 688734 BUSINESS ADDRESS: STREET 1: 4666 FARIES PKWY CITY: DECATUR STATE: IL ZIP: 62526 BUSINESS PHONE: 2174244798 POS EX 1 0001.txt AMENDMENT TO S-8 Page 1 As filed with the Securities and Exchange Commission on August 8, 2000 Registration No. 333-42612 SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 _____________ POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT Under the Securities Act of 1933 _______________ ARCHER-DANIELS-MIDLAND COMPANY (Exact name of Registrant as specified in its charter) Delaware 41-0129150 (State or other (I.R.S. Employer jurisdiction of Identification No.) incorporation or organization) 4666 Faries Parkway 62526 Decatur, Illinois (Zip Code) (Address of principal executive offices) 401(k) PLAN FOR SALARIED EMPLOYEES 401(k) PLAN FOR HOURLY EMPLOYEES (Full title of the plans) David J. Smith Vice President, Secretary and General Counsel Archer-Daniels-Midland Company 4666 Faries Parkway Decatur, Illinois 62526 (Name and address of agent for service) Telephone number, including area code, of agent for service: (217) 424-5200 ______________________ Approximate date of proposed sale to the public: As soon as practicable after the effective date of the Registration Statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [ ] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462 (c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462 (d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ X] 333- 42612 If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] 1 Page 2 ARCHER-DANIELS-MIDLAND COMPANY EXPLANATORY NOTE This Post-Effective Amendment No. 1 to the Form S-8 Registration Statement is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended, for the sole purpose of filing Exhibit Numbers 4.3 and 4.4, which were listed but unintentionally omitted from the initial filing of the Registration Statement. The contents of the Registration Statement on Form S-8 (Commission File No. 333-42612) filed by Archer-Daniels-Midland Company (the "Company") on July 31, 2000, including the exhibits thereto, which was effective immediately upon such filing, is incorporated by reference in this Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, previously filed with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are, as of their respective dates, incorporated by reference and made a part hereof: (1) The Annual Report on Form 10-K of Archer- Daniels-Midland Company (the "Company") for the fiscal year ended June 30, 1999 (which incorporates by reference certain portions of the Company's 1999 Annual Report to Shareholders, including financial statements and notes thereto, and certain portions of the Company's Definitive Notice and Proxy Statement for the Company's Annual Meeting of Shareholders held on October 21, 1999) (File No. 001-00044). (2) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (1) above (File No. 001-00044). (3) The description of the Company's Common Stock which is included in registration statements and reports filed under the Exchange Act from time to time. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicate that all of the shares of Common Stock offered have been sold or which deregister all shares of the Common Stock then remaining unsold shall be deemed to be incorporated by reference in and to be a part of this Registration Statement from the date of filing of such documents. Any statement contained in a document incorporated, or deemed to be incorporated, by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or incorporated herein by reference or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not Applicable. 2 Page 3 Item 5. Interests of Named Experts and Counsel. Not Applicable. Item 6. Indemnification of Directors and Officers. Under Delaware law, a corporation may indemnify any person who was or is a party or is threatened to be made a party to an action (other than an action by or in the right of the corporation) by reason of his service as a director, officer, employee or agent of the corporation, or his service, at the corporation's request, as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys' fees) that are actually and reasonably incurred by him ("Expenses"), and judgments, fines and amounts paid in settlement of the action, provided that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. Although Delaware law permits a corporation to indemnify any person referred to above against Expenses in connection with the defense or settlement of an action by or in the right of the corporation, provided that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests, if the person has been judged liable to the corporation, indemnification is only permitted to the extent that the Court of Chancery (or the court in which the action was brought) determines that, despite the adjudication of liability, the person is entitled to indemnity for such Expenses as the court deems proper. Delaware law also provides for mandatory indemnification of any director or officer against Expenses to the extent such person has been successful in any proceeding covered by the statute. In addition, Delaware law permits (i) corporations to include a provision in their certificates of incorporation limiting or eliminating the personal liability of a director to a corporation or its stockholders, under certain circumstances, for monetary damages or breach of fiduciary duty as a director and (ii) the general authorization of advancement of a director's or officer's litigation expenses, including by means of a mandatory charter or bylaw provision to that effect, in lieu of requiring the authorization of such advancement by the board of directors in specific cases. In addition, Delaware law provides that indemnification and advancement of expenses provided by the statute shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement or otherwise. Article Fourteenth of the Registrant's Certificate of Incorporation and Article X of its Bylaws provide for the broad indemnification of the Registrant's officers and directors and limit the personal monetary liability of the Registrant's directors to the fullest extent permitted by Delaware law. The Registrant has also entered into indemnification contracts with certain of its directors and officers and maintains insurance coverage relating to certain liabilities of its directors and officers. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. Exhibit Description 4.1 Composite Certificate of Incorporation, as amended. 4.2 Bylaws, as amended and restated. *4.3 401(k) Plan for Salaried Employees *4.4 401(k) Plan for Hourly Employees 3 Page 4 5.1 Opinion of David J. Smith. 5.2 The Registrant undertakes to submit the Plans, as amended, to the Internal Revenue Service ("IRS") in a timely manner for a determination letter as to the Plans' qualified status, and the Registrant will make all changes required by the IRS in order to qualify the Plans. 23.1 Consent of David J. Smith. 23.2 Consent of Ernst & Young LLP. 24 Powers of Attorney. __________________ * Filed with this amendment. All other listed exhibits were filed with or incorporated by reference in Registration Statement on Form S-8 (333-42612) filed with the Commission on July 31, 2000. Item 9. Undertakings. A. The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a twenty percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4 Page 5 B. The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 5 Page 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Post-Effective Amendment No. 1 to Registration Statement (333-42612) to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Decatur, State of Illinois, on August 8, 2000. ARCHER-DANIELS-MIDLAND COMPANY By /s/ David J. Smith David J. Smith Vice President, Secretary and General Counsel Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to Registration Statement has been signed by the following persons in the capacities indicated on August 8, 2000. Signature Title /s/ G. Allen Andreas, Jr. Chairman and Chief Executive Officer G. Allen Andreas, Jr. (Principal Executive Officer) /s/ Douglas J. Schmalz Vice President and Chief Financial Officer Douglas J. Schmalz (Principal Financial Officer) /s/ Steven R. Mills Controller Steven R. Mills (Principal Accounting Officer) Dwayne O. Andreas* Chairman Emeritus of the Board of Directors G. Allen Andreas, Jr.* Director John R. Block* Director Richard R. Burt* Director Mollie Hale Carter* Director Gaylord O. Coan* Director F. Ross Johnson* Director A majority of the Board of Directors David J. Mimran* Director M. Brian Mulroney* Director Robert S. Strauss* Director J.K. Vanier* Director O.G. Webb* Director Andrew Young* Director * David J. Smith, by signing his name hereto, does hereby sign this document on behalf of each of the above named officer and/or directors of the Registrant pursuant to powers of attorney duly executed by each person. By /s/ David J. Smith David J. Smith, Attorney-in- Fact 6 Page 7 INDEX TO EXHIBITS Method Exhib Description Of Filing it 4.1 Composite Certificate of Incorporation, as Incorporate amended d by Reference 4.2 Bylaws, as amended and restated Incorporate d by Reference 4.3 401(k) Plan for Salaried Employees Filed Electronica lly 4.4 401(k) Plan for Hourly Employees Filed Electronica lly 5.1 Opinion of David J. Smith Previously Filed 5.2 The Registrant undertakes to submit the Plans, as amended, to the Internal Revenue Service ("IRS") in a timely manner for a determination letter as to the Plans' qualified status, and the Registrant will make all changes required by the IRS in order to qualify the Plans. 23.1 Consent of David J. Smith (contained in Exhibit 5 to the Registration Statement) 23.2 Consent of Ernst & Young LLP Previously Filed 24 Powers of Attorney Previously Filed 7 EX-4.3 2 0002.txt SALARIED PAGE 1 401(K) PLAN FOR SALARIED EMPLOYEES (As Adopted Effective January 1, 2000) 1 Page 2 401(K) PLAN FOR SALARIED EMPLOYEES TABLE OF CONTENTS ARTICLE I INTRODUCTION 1 1.1 Plan; Purpose 1 1.2 Qualified Profit Sharing Plan (With 401(k) Arrangement) 1 1.3 Plan Document 1 1.4 Effective Date of Document 1 ARTICLE II DEFINITIONS AND CONSTRUCTION 1 2.1 Definitions 1 2.2 Choice of Law 5 ARTICLE III PARTICIPATION 5 3.1 Start of Participation 5 ARTICLE IV EMPLOYEE CONTRIBUTIONS 6 4.1 401(k) Contributions 6 4.2 After-Tax Contributions 6 4.3 Rollover Contributions 6 4.4 Transfers from ESOP 7 4.5 Form of Contribution 7 ARTICLE V EMPLOYER CONTRIBUTIONS 7 ARTICLE VI CONTRIBUTION LIMITS 7 6.1 Code Section 402(g) Limit on 401(k) Contributions 7 6.2 Code Section 401(k) Nondiscrimination Test 7 6.3 Maximum Annual Additions 8 6.4 Deduction Limit 9 ARTICLE VII ACCOUNTS 9 7.1 Accounts 9 7.2 Valuation of Accounts 10 7.3 Statements 11 7.4 Voting Rights on Company Stock 11 7.5 Tender or Exchange Offers Regarding Company Stock 12 ARTICLE VIII INVESTMENT OF ACCOUNTS 12 8.1 Investment Options 12 8.2 Participant Loan Program 13 ARTICLE IX VESTING 14 ARTICLE X WITHDRAWALS WHILE EMPLOYED 14 10.1 Withdrawals for Hardship 14 10.2 Withdrawals After Age 59 and one half 15 10.4 Withdrawals from Predecessor Plan Subaccounts 16 10.5 Withdrawal Procedures 16 2 Page 3 ARTICLE XI DISTRIBUTIONS AFTER TERMINATION 16 11.1 Benefit on Termination of Employment 16 11.2 Time, Form and Medium of Distribution 17 11.3 Cash-Out of Small Accounts 18 11.4 Minimum Distribution Rules 18 11.5 Distribution Procedures 18 ARTICLE XII DISTRIBUTIONS AFTER DEATH 18 12.1 Benefit on Death 18 12.2 Time, Form and Medium of Distribution 19 12.3 Beneficiary Designation 19 12.4 Multiple Beneficiaries 20 12.5 Minimum Distribution Rules 20 ARTICLE XIII MISCELLANEOUS BENEFIT PROVISIONS 21 13.1 Valuation of Accounts Following Termination of Employment 21 13.2 Direct Rollover Option 21 13.3 Missing Participants or Beneficiaries 21 13.4 Distribution in Event of Certain Corporate Transactions 22 13.5 Distribution to Alternate Payee 22 13.6 Brokerage Fees 22 13.8 No Other Benefits 22 13.9 Source of Benefits 23 13.10 Incompetent Payee 23 13.11 No Assignment or Alienation of Benefits 23 13.12 Payment of Taxes 23 13.13 Conditions Precedent 23 13.14Delay of Distribution in Event of Stock Dividend or Split 23 ARTICLE XIV TRANSFER OR REEMPLOYMENT 23 14.1 Transfer of Employment 23 14.2 Effect of Reemployment 24 ARTICLE XV TRUST FUND 24 15.1 Composition 24 15.2 No Diversion 24 15.3 Funding Policy 24 15.4 Share Registration 24 15.5 Purchase/Sale of Company Stock 25 ARTICLE XVI ADMINISTRATION 25 16.1 Administration 25 16.2 Certain Fiduciary Provisions 25 16.3 Payment of Expenses 26 16.4 Evidence 26 16.5 Correction of Errors 26 16.6 Claims Procedure 26 16.7 Waiver of Notice 26 16.8 Agent For Legal Process 26 16.9 Indemnification 26 16.10 Exercise of Authority 26 2 Page 3 16.11 Telephonic or Electronic Notices and Transactions 27 ARTICLE XVII AMENDMENT, TERMINATION, MERGER 27 17.1 Amendment 27 17.2 Permanent Discontinuance of Contributions 28 17.3 Termination 28 17.4 Partial Termination 28 17.5 Merger, Consolidation, or Transfer of Plan Assets 28 17.6 Deferral of Distributions 28 ARTICLE XVIII PREDECESSOR PLAN ACCOUNTS 28 18.1 Transfers from Other Plans 28 18.2 Optional Forms of Payment 28 18.3 Special Rules if Survivor Annuity Requirements Apply 29 ARTICLE XIX MISCELLANEOUS PROVISIONS 30 19.1 Special Top-Heavy Rules 30 19.2 Qualified Military Service 32 19.3 Insurance Company Not Responsible for Validity of Plan 32 19.4 No Guarantee of Employment 32 19.5 Use of Compounds of Word "Here" 32 19.6 Construed as a Whole 32 ADDENDUM SPECIAL RULES FOR PLAN YEAR 2000 33 3 Page 4 ADM 401(K) PLAN FOR SALARIED EMPLOYEES (As Adopted Effective January 1, 2000) ARTICLE I INTRODUCTION 1.1 Plan; Purpose. The ADM 401(K) PLAN FOR SALARIED EMPLOYEES is sponsored by the Company primarily to provide Eligible Employees with a means to save for their retirement or other purposes, and also to provide Eligible Employees with a means to acquire an ownership interest in the Company. The Plan operates in coordination with the ESOP. 1.2 Qualified Profit Sharing Plan (With 401(k) Arrangement). The Plan is a profit sharing plan that is intended to qualify under Code 401(a). The Plan includes a cash or deferred arrangement that is intended to qualify under Code 401(k). 1.3 Plan Document. The Plan document consists of this document, the various appendices to this document, the List of Participating Employers for the Plan, the List of Predecessor Employers for the Plan, the List of Predecessor Plan Subaccounts for the Plan and any document that is expressly incorporated by reference into the Plan. 1.4 Effective Date of Document. The Plan (as stated in this document) is effective January 1, 2000. ARTICLE II DEFINITIONS AND CONSTRUCTION 2.1 Definitions. 2.1.1 "Account" means the bookkeeping account maintained to reflect the Participant's interest in the Trust Fund. 2.1.2 "Active Participant" means an Eligible Employee who has become and remains an Active Participant under Article III. 2.1.3 "Affiliate" means any corporation that is a member of the same controlled group as the Company as defined in Code 414(b), any business entity that is under common control with the Company as defined in Code 414(c), any business entity that is a member of an affiliated service group with the Company as defined in Code 414(m), or any other business entity that is required to be aggregated and treated as one employer with the Company under Code 414(o). For purposes of applying the limits of Code 415, Code 414(b) and 414(c) will be applied as modified by Code 415(h). 4 Page 5 2.1.4 "Annual Addition" means any of the following amounts credited to the Participant as of any date within the limitation year: (a) Employee after-tax contributions credited under any defined contribution plan maintained by the Company or an Affiliate (but not rollover contributions); (b) Employer contributions credited under any defined contribution plan or simplified employee pension plan maintained by the Company or an Affiliate, including 401(k) Contributions credited under this Plan (including excess contributions distributed under Sec. 6.2, but not including excess deferrals distributed under Sec. 6.1), and including Matching and Non- Matching Contributions credited under the ESOP (including excess contributions distributed thereunder to satisfy the aggregate contribution percentage test of Code 401(m)); (c) Forfeitures credited under any defined contribution plan maintained by the Company or an Affiliate; (d) Amounts credited to any individual medical benefit account (as described in Code 415(l)(2)) under any defined benefit plan maintained by the Company or an Affiliate, provided that, such amounts will be disregarded in applying the twenty-five percent (25%) of compensation limit under Code 415(c)(1)(B); and (e) Amounts credited to any separate account for retiree medical benefits (as described in Code 419A(d)(2)) on behalf of any Key Employee under any welfare benefit fund maintained by the Company or an Affiliate. 2.1.5 "Beneficiary" means a person or persons designated as such pursuant to Sec. 12.3. 2.1.6 "Code" means the Internal Revenue Code of 1986, as amended. 2.1.7 "Company" means Archer Daniels Midland Company. 2.1.8 "Company Stock" means common stock of the Company. 2.1.9 "Eligible Employee" means the following: (a) General Rule. An Eligible Employee is an Employee who satisfies the following criteria: (1) The Employee is paid on a regular stated salary basis, a drawing account plus commission basis or wholly on a commission basis, or is employed in an office clerical position. (2) The Employee is employed with a Participating Employer (while it is a Participating Employer). (3) The Employee is not excluded under any one of the following categories: 5 Page 6 (A) Any individual who is compensated on a stated salary basis but who is nevertheless classified as an hourly employee by the Company, and who is eligible to participate in the ADM 401(k) Plan for Hourly Employees (for example, non-supervisory employees of ARTCO). (B) Any individual who is classified as a probationary or temporary employee by the Company. (C) Any individual who is classified as an independent contractor, or as having any status other than a common-law employee, by the Company (regardless of whether such individual is subsequently determined to be a common-law employee or an employee for any other purpose). (D) Any individual who is a citizen or resident of a foreign country unless the Company expressly extends eligibility to such individual, such individual does not receive contributions under any funded plan of deferred compensation in a foreign country, and such individual is on the payroll system of the Company or an Affiliate in the United States. (E) Any individual who is a Leased Employee with respect to the Company or an Affiliate. (F) Any individual who is classified as a "Sales Associate" or "Sales Representative" working with Moorman Manufacturing Company (or any subsidiary thereof), other than a Sales Representative who is classified as "Bronze", "Silver" or "Gold". (b) Collective Bargaining Employees. An Employee is not an Eligible Employee during any period he/she is a member of a unit of Employees covered by a collective bargaining agreement unless the agreement expressly provides that he/she is eligible to participate in this Plan. For this purpose, a collective bargaining agreement will be deemed to continue in effect after it expires during the pendency of collective bargaining negotiations until the parties have negotiated to "impasse" as determined by the Company, and an Employee thereafter will be an Eligible Employee if and only if participation is part of the impasse proposal of the Company or the Employee was an Eligible Employee before the collective bargaining agreement expired and the Company elects to continue such status. (c) Authorized Leaves of Absence. An Employee will continue as an Eligible Employee during any authorized and paid leave of absence if he/she was an Eligible Employee prior to the start of such leave until Termination of Employment or the happening of any event that would have caused the Employee to cease to be an Eligible Employee if he/she had not been on a leave of absence (e.g., if his/her employer ceases to be a Participating Employer). 6 Page 7 2.1.10 "Employee" means any common-law employee of the Company or an Affiliate (while it is an Affiliate) and any Leased Employee with respect to the Company or an Affiliate; provided that, a Leased Employee will not be an Employee if Leased Employees do not constitute more than twenty percent (20%) of the combined workforce of the Company and Affiliates and the Leased Employee is covered by a plan of the leasing organization that is described in Code 414(n)(5). An individual who is employed by an eligible foreign affiliate and who is a citizen or resident of the United States will be treated as an Employee of the Company for the period of his/her employment with the eligible foreign affiliate provided the individual does not receive contributions under any funded plan of deferred compensation with respect to remuneration received from the eligible foreign affiliate. An "eligible foreign affiliate" is any foreign entity that satisfies the following requirements: (i) ten percent (10%) or more of the voting stock or profits interest of the foreign entity is owned by the Company or a domestic Affiliate of the Company, and (ii) the Company has entered into an agreement under Code 3121(l) that applies to individuals employed by that foreign entity who are citizens or residents of the United States. 2.1.11 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. 2.1.12 "ESOP" means, as applicable to the Participant, the ADM Employee Stock Ownership Plan for Salaried Employees or the ADM Employee Stock Ownership Plan for Hourly Employees. 2.1.13 "401(k) Contribution" means a contribution made pursuant to Sec. 4.1. 2.1.14 "Highly Compensated Employee" means an Employee who was a five-percent owner (as defined in Code 414(q)(2)) at any time during the current Plan Year or the look-back period, or an Employee who received compensation in excess of the amount in effect under Code 414(q)(1)(A) for the look-back period, with "compensation" for this purpose meaning compensation as defined in Sec. 6.3.2. The "look-back period" for this purpose is the twelve-month period immediately preceding the current Plan Year. 2.1.15 "Leased Employee" means an individual defined as such under Code 414(n); generally, any individual who is not a common-law employee of the Company or an Affiliate, but who performs services for the Company or Affiliate (while it is an Affiliate) pursuant to an agreement with any other person, provided such individual has performed such services for the Company or Affiliate on a substantially full-time basis for a period of at least one year and such services are performed under the primary direction and control of the Company or Affiliate. 2.1.16 "Normal Retirement Age" means age 65. 2.1.17 "Participant" means any of the following: (a) An Active Participant; (b) An Employee or former Employee who is no longer an Active Participant but who still has an Account under the Plan; or 7 Page 8 (c) An Employee or former Employee who has a Rollover Subaccount but who has not yet become an Active Participant. 2.1.18 "Participating Employer" means the Company and any Affiliate that is included on the List of Participating Employers maintained for the Plan during the effective period specified on such list (provided that, an employer will automatically cease to be a Participating Employer as of the date it ceases to be an Affiliate). 2.1.19 "Plan" means the ADM 401(k) Plan for Salaried Employees, as amended. 2.1.20 "Plan Year" means the calendar year. 2.1.21 "Predecessor Employer" means any business entity from whose employment a group of Employees has been transferred to employment with the Company or an Affiliate, or any member of a controlled group of corporations of which an Affiliate used to be a member prior to becoming a member of the controlled group of the Company. 2.1.22 "Spouse" means a person of the opposite sex to whom the Participant is legally married (including a common-law spouse in any state that recognizes common-law marriage). 2.1.23 "Termination of Employment" means resignation, discharge, retirement, death or the happening of any other event or circumstance that results in the severance of the employer-employee relationship with the Company and all Affiliates; provided that, solely to determine whether a Participant is entitled to a distribution from the Plan, a Termination of Employment will not be deemed to have occurred unless there has been a separation from service which the Company determines satisfies the requirements of Code 401(k)(2)(B)(i)(I). 2.1.24 "Trust Fund" means the trust fund or funds (or any group annuity contract with an insurance company) that serves as a funding vehicle for the Plan. 2.1.25 "Trustee" means a trustee (or insurance company) appointed and acting as such with respect to all or any portion of the Trust Fund. 2.1.26 "Valuation Date" means each day on which trading occurs on the New York Stock Exchange. 2.2 Choice of Law. The Plan will be governed by the laws of the State of Illinois to the extent that such laws are not preempted by the laws of the United States. All controversies, disputes, and claims arising hereunder must be submitted to the United States District Court for the Central District of Illinois, except as otherwise provided in any trust agreement or group annuity contract governing all or a portion of the Trust Fund. 8 Page 9 ARTICLE III PARTICIPATION 3.1 Start of Participation. 3.1.1 Participants in the ESOP Prior to August 1, 2000. An Eligible Employee who was eligible to make Before-Tax Contributions under the ESOP immediately prior to August 1, 2000, will become an Active Participant on August 1, 2000. 3.1.2 New Participants After August 1,2000. An Employee who does not become an Active Participant on August 1, 2000, will become an Active Participant on the following date: (a) The first day of the calendar month that next follows the date on which he/she completes six (6) months of continuous employment with any Controlled Group Member (while it is a Controlled Group Member), provided he/she is then an Eligible Employee; or (b) Thereafter, on the first day of the first calendar month on which he/she is an Eligible Employee. For this purpose, if an Employee terminates employment and is later rehired, his/her employment after rehire will be deemed to be continuous with his/her employment prior to the earlier termination of employment if the period of absence does not exceed one year. 3.1.3 Former Participants. A former Active Participant will again become an Active Participant on the first day of the calendar month after he/she again becomes a Eligible Employee. 3.1.4 Credit for Service with a Predecessor Employer. An Employee will receive credit for service with a Predecessor Employer for purposes of determining his/her eligibility to participate in the Plan (and such service will be treated as service with a Controlled Group Member) as required under Code 414(a) or as provided under the List of Predecessor Employers maintained for the Plan. 3.2. End of Participation. An Active Participant will continue as such for so long as he/she remains an Eligible Employee, and a Participant will continue as such until he/she receives full payment of the balance of his/her Account. ARTICLE IV EMPLOYEE CONTRIBUTIONS 4.1 401(k) Contributions. 4.1.1 401(k) Contributions. 401(k) Contributions will be made for each payroll period ending after August 1, 2000, on behalf of each Active Participant who elects to have his/her current compensation reduced in order to receive a 401(k) Contribution for such payroll period. The amount of the 401(k) Contribution will equal the amount of the reduction in current compensation. 9 Page 10 An Active Participant may elect to reduce his/her current compensation for a payroll period by any whole percent, but not less than one percent (1%) or more than fifteen percent (15%). An election (or the modification or revocation of an election) may be made with such frequency as is deemed appropriate by the Company, and must be made in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances authorized by the Company). An election (or modification or revocation of an election) will be effective as soon as administratively practicable after the election is made, but in no event will it be effective retroactive to a payroll date before the election is made. Any election in effect with respect to Before-Tax Contributions under the ESOP as of August 1, 2000, will continue to apply under this Plan after such date until modified or revoked by the Participant. An election will apply against "current compensation" which will consist of such payroll items as may be deemed appropriate by the Company, and will be determined without regard to the compensation limit under Code 401(a)(17). 4.1.2 Limits. 401(k) Contributions will be subject to the applicable limits set forth in Article VI, and the Company may restrict the 401(k) Contributions of the Highly Compensated Employees during the Plan Year if and in such manner as it deems appropriate in order to comply with such limits for the Plan Year. 4.2 After-Tax Contributions. An Active Participant is not required or permitted to make after-tax contributions under the Plan. 4.3 Rollover Contributions. The Company in its sole discretion may allow an Eligible Employee who receives an "eligible rollover distribution" (as defined in Code 402(c)(4)) from another qualified plan to rollover such distribution to this Plan. An Eligible Employee who makes a rollover will not become an Active Participant merely as a result of the rollover (and thus will not be eligible to make 401(k) Contributions) until he/she has become an Active Participant in accordance with the terms of the Plan. A rollover election must be made in such manner and in accordance with such rules as may be prescribed for this purpose by the Company. 4.4 Transfers from ESOP. An Active Participant may elect to transfer amounts credited to his/her Account under the ESOP to this Plan under the circumstances described in the ESOP. 4.5 Form of Contribution. 401(k) Contributions attributable to a given payroll period will be paid to the Trust Fund as soon as administratively practicable after the close of such payroll period, but not later then the 15th day of the calendar month following the close of such payroll period. 401(k) Contributions will generally be paid in cash, but may be paid in shares of Company Stock at the sole discretion of the Company. If paid in shares of Company Stock, such shares will be valued at the closing price of a share of Company Stock on the New York Stock Exchange for the business day immediately preceding the day the Company directs its transfer agent to issue such shares to the Trust Fund (as reported the next following business day in The Wall Street Journal). 10 Page 11 ARTICLE V EMPLOYER CONTRIBUTIONS The Plan is designed to operate in coordination with the ESOP. Accordingly, no employer contributions will be made under this Plan but will be made under the ESOP. ARTICLE VI CONTRIBUTION LIMITS 6.1 Code Section 402(g) Limit on 401(k) Contributions. The 401(k) Contributions made on behalf of a Participant for a Plan Year will not exceed the limit in effect for such Plan Year under Code 402(g). If 401(k) Contributions, in combination with all other elective deferrals (as defined in Code 402(g)(3)) of the Participant for the Plan Year, exceed such limit, then the Participant may attribute all or any portion of the excess to this Plan and request that such portion be distributed from this Plan. The portion of the excess attributed to this Plan will first be reduced by the amount of any reduction in 401(k) Contributions made under Sec. 6.2.1. The remaining excess, adjusted for investment gain or loss, will be distributed as soon as administratively practicable after a request for distribution is filed by the Participant (but not later than the April 15 following the close of the Plan Year). Any such request for distribution must be filed by March 1 following the close of the Plan Year in such manner and in accordance with such rules as will be prescribed for this purpose by the Company. The investment gain or loss allocable to an excess hereunder will be determined in the same manner generally used for allocating investment gain or loss to Accounts, and will include only investment gain or loss for the Plan Year (and not investment gain or loss for the period from the close of the Plan Year to the date of the distribution). For purposes of determining investment gain or loss, distributions will be deemed to consist of contributions made in reverse order of time ("last-in, first-out"), starting with the last contributions made for the Plan Year. 6.2 Code Section 401(k) Nondiscrimination Test. 6.2.1 Code Section 401(k) Test. The Plan will satisfy the "average deferral percentage test" of Code 401(k)(3) each Plan Year. If such test is not satisfied for a Plan Year, then the 401(k) Contributions made on behalf of Highly Compensated Employees for such Plan Year will be reduced to the extent necessary to satisfy such test, with the amount of the reduction to be determined and allocated among the Highly Compensated Employees in the manner prescribed by Code 401(k). The excess allocated to each Highly Compensated Employee, adjusted for investment gain or loss, will be distributed to the Participant as soon as administratively practicable after the close of the Plan Year (but not later than the close of the next Plan Year). 11 Page 12 The investment gain or loss allocable to an excess hereunder will be determined in the same manner generally used for allocating investment gain or loss to Accounts, and will include only investment gain or loss for the Plan Year (and not investment gain or loss for the period from the close of the Plan Year to the date of the distribution). For purposes of determining investment gain or loss, distributions will be deemed to consist of contributions made in reverse order of time ("last-in, first-out"), starting with the last contributions made for the Plan Year. The average deferral percentage test will be applied using the current year testing method. 6.2.2 Multiple Use of the Alternative Limitations. The Plan, in coordination with the ESOP, will satisfy the "multiple use" test of Code 401(m)(9) each Plan Year. If such test is not satisfied for any Plan Year, then the 401(k) Contributions made on behalf of Highly Compensated Employees for such Plan Year will be reduced to the extent necessary to satisfy such test in accordance with Sec. 6.2.1. 6.2.3 Incorporation of Guidance. All nondiscrimination tests will be applied by reference to current regulations and subsequent guidance issued by the IRS. 6.3 Maximum Annual Additions. 6.3.1 Defined Contribution Plan Limit. The Annual Additions with respect to a Participant for a limitation year will not exceed the lesser of: (a) The dollar amount in effect for such limitation year under Code 415(c)(1)(A)), or (b) Twenty-five percent (25%) of the Participant's compensation for the limitation year. If a Participant has Annual Additions under more than one defined contribution plan maintained by the Company or an Affiliate, the Annual Additions under all such plans will not exceed the above-specified limit. To the extent necessary to comply with this limit a refund will first be made of the 401(k) Contributions or other elective deferrals (as defined in Code 402(g)(3)) made by the Participant, adjusted for investment gains (if such type of contribution has been made under more than one plan, then the refunds will be made prorata from such plans). For purposes of determining investment gain, refunds will be deemed to consist of contributions made in reverse order of time ("last-in, first-out"), starting with the last contributions made for the limitation year. The "limitation year" for this purpose is the Plan Year. 6.3.2 Compensation. For purposes of applying the limits of Code 415, "compensation" means compensation as defined in Code 415(c)(3), and includes those items specified in Treas. Reg. 1.415-2(d)(2) and does not include those items specified in Treas. Reg. 1.415-2(d)(3). "Compensation" also includes 401(k) Contributions and other elective deferrals (as defined in Code 402(g)(3)), and any amounts that are contributed or deferred at the election of the Participant and that are not includible in gross income by reason of Code 125. 12 Page 13 6.4 Deduction Limit. The contributions made for any Plan Year will not exceed the maximum amount allowable as a deduction in computing the taxable income for federal income tax purposes of the Company and its Affiliates for the taxable year of the Company that ends with or within the Plan Year, and each contribution is expressly conditioned upon its being deductible under Code 404. ARTICLE VII ACCOUNTS 7.1 Accounts. 7.1.1 Types of Subaccounts. The following Subaccounts will be maintained under the Plan as part of the Account of each Participant: (a) A "401(k) Subaccount" to reflect amounts attributable to 401(k) Contributions made under this Plan, and to amounts attributable to balances transferred at the election of the Participant from his/her Before-Tax Subaccount under the ESOP to this Plan. (b) A "Match Transfer Subaccount" to reflect amounts attributable to balances transferred at the election of the Participant from his/her Matching Subaccount under the ESOP to this Plan. (c) A "Non-Match Transfer Subaccount" to reflect amounts attributable to balances transferred at the election of the Participant from his/her Non-Matching Subaccount under the ESOP to this Plan. (d) A "Tax Credit Transfer Subaccount" to reflect amounts attributable to balances transferred at the election of the Participant from his/her Tax-Credit Subaccount under the ESOP to this Plan. (e) An "After-Tax Transfer Subaccount" to reflect amounts attributable to balances transferred at the election of the Participant from his/her After-Tax Subaccount under the ESOP to this Plan. (f) A "Rollover Subaccount" to reflect amounts attributable to Rollover Contributions. (g) A "Predecessor Plan Subaccount" to reflect amounts attributable to any transfer received from a Predecessor Plan (and more than one Predecessor Plan Subaccount may be maintained with respect to a given merger or transfer as deemed appropriate by the Company to Account for different contribution sources). Additional Subaccounts may also be maintained if considered appropriate in the administration of the Plan. 7.1.2 Balance of Accounts. A Subaccount will have a cash balance expressed in United States Dollars, plus a stock balance expressed in shares of Company Stock to the extent the Subaccount is invested in Company Stock. 13 Page 14 7.1.3 Accounts for Bookkeeping Only. Accounts and Subaccounts are for bookkeeping purposes only and the maintenance of Accounts and Subaccounts will not require any segregation of assets of the Trust Fund. 7.2 Valuation of Accounts. 7.2.1 Daily Adjustments. Subaccounts will be adjusted as of each Valuation Date as follows: (a) Contributions. Contributions made with respect to a Participant will be added to the balance of the appropriate Subaccount as soon as administratively practicable after such contributions are paid into the Trust Fund; provided that, for purposes of applying the nondiscrimination tests under Code 401(a)(4) and 401(k), for purposes of determining the maximum allocations under Code 415, for purposes of calculating the deductions under Code 404 and for any other qualification provision of the Code, a contribution will be treated as having been made for the Plan Year designated by the Company provided that the contribution is paid into the Trust Fund by such deadline as may be prescribed for the applicable provision of the Code. (b) Gain or Loss on Investment Funds. The gain or loss on the mutual funds or other investment options in which Subaccounts are invested will be reflected in such Subaccounts as provided in Sec. 8.1.2. (c) Loan Interest Payments. The interest payments received on a loan made to a Participant will be added to the balance of the appropriate Subaccount as soon as administratively practicable after such interest payments are paid into the Trust Fund. Interest accrued but unpaid on a loan on the date of any distribution from a Subaccount against which the loan is to be offset will be added to the balance of the Subaccount prior to such offset (or as of such earlier date as may be specified in the loan procedures for the participant loan program). (d) Cash Dividends. The cash dividends paid on shares of Company Stock held by the Trust Fund as of the record date of such dividend will be allocated among the Subaccounts and the portion allocated to each Subaccount will be added to balance of the Subaccount as soon as administratively practicable after such dividends are paid into the Trust Fund. The portion of such cash dividends allocated to each Participant Subaccount will be determined by multiplying the total cash dividends by a fraction, the numerator of which is the number of shares of Company Stock credited to the Subaccount as of the date the dividends are paid into the Trust Fund (or as of such other date as may be established by the Company) and the denominator of which is the total number of shares of Company Stock held in all Participant Subaccounts as of the date the dividends are paid into the Trust Fund (or as of such other date as may be established by the Company). (e) Stock Dividends and Splits. The stock dividends paid on shares of Company Stock credited to any Subaccount of a Participant as of the record date of such dividend, and stock splits or reverse stock splits with respect to shares of Company Stock credited to any Subaccount of a Participant as of the record date of such split, will be added to the balance of the Subaccount as soon as administratively practicable after the additional shares resulting from such stock dividend, stock split or reverse stock split are paid into the Trust Fund. 14 Page 15 (f) Withdrawals and Distributions. The withdrawals and distributions made from a Subaccount will be subtracted from the balance of the Subaccount as of the date the withdrawal or distribution is made from the Trust Fund. Any items of income, gain or loss, or expense not provided for under the above provisions and not applied to pay expenses of the Plan will be allocated among the Subaccounts in accordance with rules prescribed for this purpose by the Company and the portion allocated to each will be added to or subtracted from the Subaccount as of the date established by the Company. 7.2.2 Processing Transactions Involving Accounts. Accounts shall be adjusted to reflect contributions, distributions and other transactions as provided in Sec. 7.2.1. However, all information necessary to properly reflect a given transaction in the Subaccounts may not be immediately available, in which case the transaction will be reflected in the Subaccounts when such information is received and processed. Further, subject to express limits that may be imposed under the Code, the Company reserves the right to delay the processing of any contribution, distribution or other transaction for any legitimate business reason (including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, force majeure, the failure of a service provider to timely receive net asset values or prices, or to correct for its errors or omissions or the errors or omissions of any service provider). With respect to any contribution, distribution or other transaction, the processing date of the transaction will be considered the applicable Valuation Date for that transaction and will be binding for all purposes of the Plan. 7.3 Statements. The Company may cause benefit statements to be issued from time to time advising Participants of the status of their Accounts, but it is not required to issue benefit statements and the issuance of such benefit statements (and any errors that may be reflected on benefit statements) will not in any way alter or affect the rights of Participants with respect to the Trust Fund. 7.4 Voting Rights on Company Stock. 7.4.1 Voting of Allocated Shares. A Participant (or Beneficiary of a deceased Participant) may instruct the Trustee as to how to vote shares of Company Stock credited to his/her Account on any matter submitted for a vote to shareholders of the Company. The number of shares with respect to which a Participant may provide voting instructions will equal the number of full and fractional shares credited to his/her Account as of the record date for determining the shareholders entitled to vote at the shareholder meeting. The Company will cause the proxy materials that are sent to shareholders to be sent to Participants prior to the shareholders meeting at which the vote is to be cast. The Company or Trustee will establish a deadline by which instructions must be received from Participants; the Trustee will tabulate the instructions received by that deadline, will determine the number of votes for and against each proposal, and will vote the allocated shares in accordance with the directions received. 7.4.2 Voting of Unallocated Shares/Shares for Which Directions Not Received. The Trustee will vote all shares of Company Stock credited to Accounts for which instructions from the Participants (or Beneficiaries) have not been received by the established deadline in the same proportion as the vote cast pursuant to Sec. 7.4.1. 15 Page 16 7.4.3 Named Fiduciary. A Participant (or Beneficiary) will be a "named fiduciary" to the extent of the voting control granted under this Section. 7.5 Tender or Exchange Offers Regarding Company Stock. 7.5.1 Tender of Allocated Shares. A Participant (or Beneficiary of a deceased Participant) may instruct the Trustee as to whether or not to tender or exchange shares of Company Stock credited to his/her Account in any tender or exchange offer for shares of Company Stock. The number of shares with respect to which a Participant may provide instructions will equal the number of full and fractional shares credited to his/her Account as of a date established by the Company that precedes the date on which a response is required to the offer (with appropriate adjustments to reflect subsequent transactions with respect to the Account). The Company will use reasonable efforts to cause each Participant to be sent a notice of the terms of any tender or exchange offer, and to be provided with forms by which the Participant may instruct the Trustee to tender shares of Company Stock credited to his/her Account, to the extent permitted under the terms of such offer. The Company or Trustee will establish a deadline by which instructions must be received from Participants; the Trustee will tabulate the instructions received by that deadline, will determine the number of shares to tender and retain, and will tender or retain the allocated shares in accordance with the directions received. A Participant (or Beneficiary ) may not instruct the Trustee to tender or exchange some but less than all of the shares of Company Stock credited to his/her Account, and an instruction to tender or exchange less than all will be deemed to be an instruction not to tender or exchange any shares of Company Stock credited to his/her Account. 7.5.2 Tender of Unallocated Shares/Shares for Which No Directions Received. The Trustee will tender or exchange, or retain, shares of Company Stock credited to Participant Accounts for which instructions from the Participant (or Beneficiary) have not been received by the established deadline, in the same proportion as the decision made in Sec. 7.5.1. 7.5.3 Named Fiduciary. A Participant (or Beneficiary) will be a "named fiduciary" to the extent of the investment control granted under this Section. 16 Page 17 ARTICLE VIII INVESTMENT OF ACCOUNTS 8.1 Investment Options. 8.1.1 Investment Options. The Company will determine the investment options that will be made available under the Plan, which may include mutual funds, common or commingled investment funds, a group annuity, deposit administration or separate account contract issued by an insurance company, Company Stock (maintained using share accounting or as part of a pooled investment fund using unit accounting) or any other investment option deemed appropriate by the Company. The Company may at any time and from time to time add to or remove from the investment options; provided that, at least three (3) investment options will be available at all times under the Plan. A Participant (or Beneficiary following the death of the Participant) will be allowed to direct the investment of his/her Subaccounts among the investment options available under the Plan. The Plan is intended to comply with ERISA 404(c). 8.1.2 Investment Gains or Losses. Investment gains or losses of the Trust Fund with respect to an investment option will be allocated as follows: (a) In the case of any mutual fund, the value of that portion of a Subaccount invested in the mutual fund as of any date will equal the value of a share in such fund multiplied by the number of shares credited to the Subaccount. (b) In the case of any pooled investment fund, gains or losses on the pooled investment fund will be allocated among the Subaccounts in proportion to the value of that portion of each Subaccount invested in such fund immediately prior to the allocation, and the gain or loss allocated to each will be credited to or charged against the Subaccount. Alternatively, unit values may be established for a pooled investment fund in accordance with investment rules prescribed for this purpose by the Company, and the value of that portion of a Subaccount invested in a pooled investment fund will equal the value of a unit in such fund multiplied by the number of units credited to the Subaccount. (c) In the case of any investment that is held specifically for a Subaccount, any gain or loss on such investment will be credited to or charged against the Subaccount. Any investment gain or loss of the Trust Fund that is not directly attributable to the investment of the Account of any Participant (including, for example, any "float" earned on the disbursement account established for the Plan and not treated as part of the compensation of the Trustee or paying agent for the Plan, and any 12b-1 or similar fees paid to the Plan) will be applied to pay administrative expenses of the Plan, with any excess remaining at the close of the Plan Year being allocated among the Accounts in accordance with rules established for this purpose by the Company. 17 Page 18 8.1.3. Investment Direction Procedures. Investment directions may be given with such frequency as is deemed appropriate by the Company, and must be made in such percentage or dollar increments, in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances so authorized by the Company). All investment directions will be complete as to the terms of the investment transaction and will remain in effect until a new investment direction is filed by the Participant. 8.1.4 Processing Investment Transactions. Investment directions will be processed as soon as administratively practicable after proper investment directions are received from the Participant. Neither the Plan nor the Company provides a guarantee that investment directions will be processed on a daily basis, or provides a guarantee in any respect as to the processing time of an investment direction. Notwithstanding the general provisions of Sec. 7.2.1, the Company reserves the right to not value an investment option or a Subaccount on any given Valuation Date for any reason deemed appropriate by the Company. The Company further reserves the right to delay the processing of any investment transaction for any legitimate business reason (including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, force majeure, the failure of a service provider to timely receive values or prices, to correct for its errors or omissions or the errors or omissions of any service provider). With respect to any investment transaction, the processing date of the transaction will be considered the applicable Valuation Date for that transaction and will be binding for all purposes of the Plan. 8.2 Participant Loan Program. The Company may establish a participant loan program in accordance with ERISA 408(b)(1), the terms and conditions of which will be determined by the Company and set forth in written loan procedures that will be deemed to form part of the Plan. The rules and regulations will apply on a uniform basis to all Participants, and will not allow for an offset against the balance of an Account upon default of a loan prior to the date distributions are permitted under the Code (regardless of whether a prior taxable event occurs in connection with the loan under Code 72(p)). ARTICLE IX VESTING A Participant will have a fully vested and nonforfeitable interest at all times in his/her Account under this Plan. ARTICLE X WITHDRAWALS WHILE EMPLOYED 10.1 Withdrawals for Hardship. 18 Page 19 10.1.1 Withdrawal. A Participant may make a withdrawal from any Subaccount specified in 10.1.2 prior to the date he/she attains age fifty-nine and one-half (59 and one half) if the withdrawal is on account of an immediate and heavy financial need and the withdrawal is needed to alleviate the financial need. However, a withdrawal will not be allowed of an amount less than one thousand dollars ($1,000) (or the total amount available for withdrawal if less than such amount). Also, no more than one withdrawal will be allowed in any Plan Year from this Plan pursuant to this Section or from the ESOP pursuant to Sec. 10.1 of the ESOP (any withdrawal made at the same time from both plans will be treated as one withdrawal). 10.1.2 Available Subaccounts/Ordering. A withdrawal under this Section will be made from the following Subaccounts and in the following order: (a) Tax-Credit Transfer Subaccount; (b) Before-Tax Subaccount; (c) After-Tax Transfer Subaccount; provided that, a Participant may elect to receive a withdrawal from his/her After-Tax Transfer Subaccount regardless of the otherwise applicable ordering rules. A withdrawal will be allowed under this Section only if the Participant has first received any available withdrawal from his/her Rollover Subaccount. Notwithstanding any contrary provision, a withdrawal from the 401(k) Subaccount may not exceed an amount equal to the 401(k) Contributions credited to such Subaccount. If a Participant has transferred all or any portion of his/her Before-Tax Subaccount from the ESOP to this Plan, a withdrawal from the 401(k) Subaccount may not exceed the balance of the Before-Tax Subaccount under the ESOP as of December 31, 1988, plus the amount of the Before-Tax Contributions credited to such Subaccount after December 31, 1988, and prior to August 1, 2000, plus the amount of the 401(k) Contributions credited to the 401(k) Subaccount after August 1, 2000, reduced by the amount previously withdrawn from on account of hardship from the Before-Tax Subaccount under the ESOP or the 401(k) Subaccount. 10.1.3 Immediate and Heavy Financial Need. A withdrawal will be deemed to be on account of an immediate and heavy financial need only if the withdrawal is for one of the following reasons: (a) Expenses for medical care (as defined in Code 213(d)) incurred by the Participant, the Spouse of the Participant, or any dependent (as defined in Code 152) of the Participant, or expenses necessary for any of such persons to obtain such medical care. (b) Costs directly related to the purchase of the principal residence of the Participant (excluding mortgage payments). (c) Payment of tuition, related educational fees and room and board expenses for the next semester or quarter of post-secondary education for the Participant or the Spouse, child, or dependent (as defined in Code 152) of the Participant. 19 Page 20 (d) To prevent the eviction of the Participant from his/her principal residence or foreclosure on the mortgage of the principal residence of the Participant. 10.1.4 Needed to Alleviate Need. A withdrawal will be deemed to be needed to alleviate an immediate and heavy financial need only if: (a) The withdrawal amount does not exceed the amount of the immediate and heavy financial need (plus the amount necessary to pay any federal, state or local income taxes or penalties reasonably expected to result from the withdrawal as determined by the Company). (b) The Participant has obtained all distributions (other than hardship distributions) and all nontaxable loans currently available under all plans maintained by the Company or an Affiliate. (c) The Participant agrees that the 401(k) Contributions and other elective deferrals (as defined in Code 402(g)(3)) and employee contributions under all other qualified and nonqualified plans of deferred compensation (including stock option, stock purchase or similar plan) maintained by the Company or an Affiliate, will be suspended for at least twelve (12) months after the receipt of the hardship distribution. This will not prevent the "cash-less" exercise of any stock option. (d) For the calendar year immediately following the calendar year of the withdrawal, the Participant may not make elective deferrals (as defined in Code 402(g)(3)) under all plans maintained by the Company or any Affiliate in excess of the applicable limit under Code 402(g) for such next calendar year less the amount of his/her elective deferrals for the calendar year of the hardship distribution. 10.1.5 Medium of Withdrawal. A withdrawal will be made in the following medium at the election of the Participant: (a) Fully in cash; or (b) Fully in whole shares of Company Stock (with any fractional share in cash). 10.2 Withdrawals After Age 59 and one half. 10.2.1 Withdrawals. A Participant may make a withdrawal from a Subaccount specified in 10.2.2. for any reason after he/she attains age fifty-nine and one-half (59 and one half). However, a withdrawal will not be allowed of an amount less than one thousand dollars ($1,000) (or the total amount available for withdrawal if less than such amount). Also, no more than one withdrawal will be allowed in any Plan Year from this Plan pursuant to this Section or from the ESOP pursuant to Sec. 10.2 of the ESOP (any withdrawal made at the same time from both plans will be treated as one withdrawal). 10.2.2 Available Subaccounts/Ordering. A withdrawal under this Section will be made from the Subaccounts in the following order: (a) 401(k) Subaccount; (b) Matching Transfer Subaccount; 20 Page 21 (c) Non-Matching Transfer Subaccount; (d) Tax Credit Transfer Subaccount; and (e) After-Tax Transfer Subaccount; provided that, a Participant may elect to receive a distribution from a After-Tax Transfer Subaccount regardless of the otherwise applicable ordering rules. A withdrawal will be allowed under this Section only if the Participant has first received any available withdrawal from his/her Rollover Subaccount. 10.2.3 Medium of Withdrawal. A withdrawal will be made in the following medium at the election of the Participant: (a) Fully in cash; or (b) Fully in whole shares of Company Stock (with any fractional share in cash). 10.3 Withdrawals from Rollover Subaccounts. A Participant may make a withdrawal at any time and for any reason from a Rollover Subaccount. However, no more than one withdrawal will be allowed for any reason in any Plan Year from this Plan pursuant to this Section. 10.4 Withdrawals from Predecessor Plan Subaccounts. A Participant may make a withdrawal from a Predecessor Plan Subaccount as provided on the List of Predecessor Plan Accounts for the Plan. 10.5 Withdrawal Procedures. A withdrawal request must be made in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances authorized by the Company). ARTICLE XI DISTRIBUTIONS AFTER TERMINATION 11.1 Benefit on Termination of Employment. A Participant will be eligible to receive a distribution of the balance of his/her Account following his/her Termination of Employment in accordance with the terms of this Article. 11.2 Time, Form and Medium of Distribution. 11.2.1 Time of Distribution. A distribution will be made (or distributions will commence) as soon as administratively practicable after the Participant files a request for distribution following his/her Termination of Employment, but not later than sixty (60) days after the close of the Plan Year in which he/she attains Normal Retirement Age (or in which his/her Termination of Employment occurs, if later). 21 Page 22 11.2.2 Form of Distribution. A distribution will be made in the following form: (a) Retirements. If the Termination of Employment is a normal retirement or an early retirement under the ADM Retirement Plan, or if the Participant is receiving disability payments under any long-term disability plan maintained by the Company or an Affiliate, payment will be made in either of the following forms at the election of the Participant: (1) A single-sum distribution of the full balance of his/her Account (provided he/she also receives a single-sum distribution of the full balance of his/her Account under the ESOP); or (2) Two or more partial distributions each of which (other than the final distribution) is not less than one-thousand dollars ($1,000). No more than one partial distribution may be made in any calendar year from the 401(k) Plan and/or ESOP. (b) Vested Terminations. In all other cases, the distribution will be in the form of a single-sum distribution of the full balance of his/her Account (partial distributions are not permitted). 11.2.3 Medium of Distribution. A distribution (other than from a Predecessor Plan Account) will be made in the following medium at the election of the Participant: (a) Fully in cash; or (b) Fully in whole shares of Company Stock (with any fractional share in cash). A distribution from a Predecessor Plan Subaccount will be made in cash unless otherwise specified in the List of Predecessor Plan Accounts for the Plan. 11.2.4 Default Upon Failure to Request Distribution. If the Participant fails to file a distribution request, a distribution will be made as soon as administratively practicable after the Participant attains Normal Retirement Age (or after his/her Termination of Employment occurs, if later) in the form of a single-sum distribution in whole shares of Company Stock to the extent the Account is then invested in shares of Company Stock (with the balance in cash). 11.2.5 Ordering. A partial distribution will be drawn from the Subaccounts in the following order: (a) Rollover Subaccount; and (b) 401(k) Subaccount; (c) Matching Transfer Subaccount; (d) Non-Matching Transfer Subaccount; 22 Page 23 (e) Tax Credit Transfer Subaccount; (f) After-Tax Transfer Subaccount; provided that, a Participant may elect to receive a distribution from a After-Tax Transfer Subaccount regardless of the otherwise applicable ordering rules. 11.3 Cash-Out of Small Accounts. Any contrary provision notwithstanding, if the value of a Participant's Account does not exceed $5,000, a single-sum distribution of the full balance of the Account will be made to the Participant as soon as administratively practicable after his/her Termination of Employment. If the Participant fails to file an election as to the medium of distribution, the distribution will be made in cash. If the value of a Participant's Account exceeds $5,000 as of the earliest payment date available to the Participant, but subsequently falls below such amount (for example, because of distributions or investment losses) the Company may then direct that the full balance of the Account be distributed to the Participant. 11.4 Minimum Distribution Rules. Notwithstanding any contrary provision, distributions will be made as necessary to comply with the minimum distribution rules of Code 401(a)(9) (including the incidental death benefit rules of Code 401(a)(9)(G)). To calculate the minimum distribution for the first year, the initial life expectancy (or joint life and last survivor expectancy) will be determined based on the age of the Participant and his/her Beneficiary as of the birthday in the calendar year prior to the calendar year in which the required beginning date falls using the expected return multiples in Tables V and VI of Treas. Reg. 1.72-9 or, if applicable, the appropriate minimum distribution incidental benefit table in Prop. Treas. Reg. 1.401(a)(9)- 2. To calculate the minimum distribution for each succeeding year, the initial life expectancy (or joint life and last survivor expectancy) will be reduced by one for each succeeding year (and life expectancies will not be redetermined each year). A minimum distribution will be drawn from the Subaccounts in the order specified in Sec. 11.2.5. The "required beginning date" for this purpose means the April 1 of the calendar year after the later of (i) the calendar year in which he Participant attains age 70 and one half, or (ii) the calendar year of Termination of Employment. However, clause (ii) will not apply to any Participant who is more than a five-percent owner (as defined in Code 416) with respect to the Plan Year in which he/she attains age 70 and one half. 11.5 Distribution Procedures. A distribution request must be made in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances authorized by the Company). ARTICLE XII DISTRIBUTIONS AFTER DEATH 12.1 Benefit on Death. The Beneficiary of a Participant will be eligible to receive a distribution of that portion of the balance (or remaining balance) of the Participant's Account allocated to such Beneficiary following the Participant's death in accordance with the terms of this Article. 23 Page 24 12.2 Time, Form and Medium of Distribution. 12.2.1 Time of Payment. A distribution will be made as soon as administratively practicable after the death of the Participant and the entitlement of the Beneficiary has been determined by the Company. 12.2.2 Form of Distribution. A distribution will be made in the form of a single-sum distribution of the full balance payable to the Beneficiary. 12.2.3 Medium of Distribution. A distribution (other than from a Predecessor Plan Subaccount) will be made in the following medium, at the election of the Beneficiary: (a) Fully in cash; or (b) Fully in whole shares of Company Stock (with any fractional share paid in cash). A distribution from a Predecessor Plan Subaccount will be made in cash unless otherwise specified in the List of Predecessor Plan Accounts for the Plan. 12.2.4 Default Upon Failure to Request Distribution. If the Beneficiary fails to file an election as to the medium of distribution, a distribution will be made in cash. 12.3 Beneficiary Designation. 12.3.1 General Rule. A Participant may designate any person (natural or otherwise, including a trust or estate) as his/her Beneficiary to receive any balance remaining in his/her Account when he/she dies, and may change or revoke a Beneficiary designation previously made without the consent of any Beneficiary named therein. 12.3.2 Special Requirements for Married Participants. If a Participant has a Spouse at the time of death, such Spouse will be his/her Beneficiary unless: (a) The Spouse has consented in writing to the designation of a different Beneficiary; (b) The Spouse's consent acknowledges the effect of such designation; and (c) The Spouse's consent is witnessed by a notary public or an authorized representative of the Plan. Consent of a Spouse will be deemed to have been obtained if it is established to the satisfaction of the Company that such consent cannot be obtained because the Spouse cannot be located, or because of such other circumstances as may be prescribed by the Secretary of Treasury. A consent by a Spouse will be effective only with respect to such Spouse, and cannot be revoked. A Beneficiary designation that has received spousal consent cannot be changed without spousal consent. 24 Page 25 12.3.3 Form and Method of Designation. A Beneficiary designation must be made on such form and in accordance with such rules as may be prescribed for this purpose by the Company. A Beneficiary designation will be effective (and will revoke all prior designations) only if it is received by the Company (or if sent by mail, the post-mark of the mailing is) prior to the date of death of the Participant. The Company may rely on the latest Beneficiary designation on file with it (or may direct that payment be made pursuant to the default provision of the Plan if an effective designation is not on file) and will not be liable to any person making claim for such payment under a subsequently filed Beneficiary designation or for any other reason. 12.3.4 Default Designation. If a Beneficiary designation is not on file with the Company, or if no designated Beneficiary survives the Participant, the Beneficiary will be the person or persons surviving the Participant in the first of the following classes in which there is a survivor, share and share alike: (a) The Participant's Spouse. (b) The Participant's children, except that if any of the Participant's children predecease the Participant but leave issue surviving the Participant, such issue will take by right of representation the share their parent would have taken if living. (c) The Participant's parents. (d) The Participant's brothers and sisters. (e) The Participant's estate. The identity of the Beneficiary in each case will be determined by the Company. 12.3.5 Successor Beneficiary. If a Beneficiary survives the Participant but dies before receiving the full balance to which he/she is entitled, the remaining balance will be payable to the surviving contingent Beneficiary designated by the Participant or otherwise to the estate of the deceased Beneficiary. 12.3.6 Special Rules. In the case of an Active Participant in this Plan on August 1, 2000, a Beneficiary designation in effect under the ESOP immediately prior to August 1, 2000, will be deemed to apply with respect to this Plan unless and until changed or revoked by the Participant. A Beneficiary designation in effect under a predecessor plan immediately prior to its merger into this Plan or transfer of account balance to this Plan will be deemed to be valid under this Plan with respect to the resulting Predecessor Plan Subaccount (and only such subaccount) unless and until changed or revoked by the Participant. 12.4 Multiple Beneficiaries. If more than one Beneficiary is entitled to benefits following the death of a Participant, the interest of each will be segregated for purposes of applying this Article. 25 Page 26 12.5 Minimum Distribution Rules. Notwithstanding any contrary provision, distributions after the death of the Participant will be made as necessary to comply with the minimum distribution rules of Code 401(a)(9) (including the incidental death benefit rules of Code 401(a)(9)(G)). To comply with such minimum distribution rules, distribution of the full balance payable to all Beneficiaries will be made not later than the last day of the calendar year in which falls the fifth (5th) anniversary of the date the Participant dies. ARTICLE XIII MISCELLANEOUS BENEFIT PROVISIONS 13.1 Valuation of Accounts Following Termination of Employment. 13.1.1 Continued Adjustment of Accounts. If a distribution of all or any portion of an Account is deferred or delayed for any reason, the Account will continue to be adjusted to reflect investment gains or losses in accordance with the terms of the Plan. 13.1.2 Segregation of Accounts/Disbursement Accounts. If investments are liquidated to allow for a distribution, the resulting proceeds may be credited to a segregated account maintained under the Plan for the benefit of the person to whom the distribution is to be made, and any investment gains or losses on such segregated account will be allocated solely to such segregated account (and the Accounts of other Participants or Beneficiaries will not be affected by such investment gains or losses). Any such segregated account may be held uninvested in cash, or invested in an interest- bearing account or other short-term investment as directed by the Company pending distribution from the Plan. A disbursement account also will be established for the Plan (either with the Trustee, any affiliate of the Trustee, or any third party bank selected by the Company) to allow for any distributions from the Plan. Such disbursement account is separate and distinct from any segregated account established under the prior paragraph, and any interest or other income earned on such disbursement account will inure to the benefit of the Plan and not the Participant. Such interest or other income will be applied to pay administrative expenses of the Plan or, pursuant to agreement with the Trustee or paying agent for the Plan, will be treated as part of the compensation of the Trustee or paying agent for the Plan. In any event, a Participant will have no claim to any income on any disbursement account established for the Plan. 26 Page 27 13.2 Direct Rollover Option. A distribution to a Participant, the surviving Spouse of a Participant, or an alternate payee under a qualified domestic relations order who is the Spouse or former Spouse of a Participant may be made in the form of a direct rollover to an individual retirement account or annuity described in Code 408 or to another qualified plan described in Code 401(a); except that, a qualified plan is not available as a rollover alternative in the case of the surviving Spouse of the Participant. A direct rollover will be allowed only to the extent that the distribution is an "eligible rollover distribution" (as defined in Code 402(f)) (e.g., an eligible rollover distribution does not include a hardship distribution from a 401(k) Subaccount, a distribution that is part of a series of installments payable over a period of ten (10) years or more or a distribution that is required under Code 401(a)(9)). The recipient of an eligible rollover distribution must provide the Company with the information necessary to accomplish the direct rollover in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances authorized by the Company). 13.3 Missing Participants or Beneficiaries. A Participant or Beneficiary must maintain his/her most recent post office address on file with the Company. Any communication addressed to the Participant or Beneficiary at the post office address on file with the Company will be binding on the Participant or Beneficiary for all purposes of the Plan, and the Company is not obligated to search for any Participant or Beneficiary. If a Participant or Beneficiary fails to claim any amount payable under the Plan (or fails to cash any check drawn on the disbursement account established for the Plan), such amount will be forfeited by the Participant or Beneficiary at such time as is deemed appropriate by the Company, or may be disposed of in such other equitable manner as is deemed appropriate by the Company. Any forfeited amounts shall be transferred to the ESOP and applied to reduce Matching Contributions made to the ESOP. If a Participant or Beneficiary claims a forfeited amount prior to termination of the Plan, the value forfeited (measured as of the date of the forfeiture) shall be restored to the Participant or Beneficiary (without adjustment for subsequent income or appreciation). The Company shall make an additional contribution to the Plan as necessary to provide for the restoration. 13.4 Distribution in Event of Certain Corporate Transactions. The Company or an Affiliate may from time to time sell an interest in a subsidiary. The Company or an Affiliate also may from time to time sell a facility, division or service line and, in connection with such sale, a Participant may terminate his/her employment with the Company and become an employee of the purchaser of such facility, division or service line. In either event, the Company will determine whether a separation from service has occurred that satisfies the requirements of Code 401(k)(2)(B)(i)(I) and thus whether there has been a Termination of Employment that allows a distribution from the Plan. If the Company determines that there has not been a separation from service, the Company, in its sole discretion may nonetheless allow affected Participants to receive a distribution of their Account if it determines that either of the following events has occurred: (a) There has been a sale by the Company or an Affiliate (provided it is a corporation) of substantially all of the assets (within the meaning of Code 409(d)(2)) used in a trade or business to another corporation. (b) There has been a sale by the Company or an Affiliate (provided it is a corporation) of an interest in a subsidiary (within the meaning of Code 409(d)(3)). 27 Page 28 A distribution under this provision will be allowed only in the form of a single-sum payment to be made as of the date established by the Company that is not later than the last day of the Plan Year following this event. 13.5 Distribution to Alternate Payee. An alternate payee under a qualified domestic relations order (each as defined in Code 414(p)) may elect to receive a lump-sum distribution of the amount assigned to such individual under the order as soon as administratively practicable after the Company has determined that the order is a qualified domestic relations order (and all time for appeal of such decision has expired), or as of such later date as may be specified in the order, without regard to whether such distribution is made prior to the earliest retirement age (as defined in Code 414(p)). If the amount assigned to the alternate payee under a qualified domestic relations order does not exceed five thousand dollars ($5,000), such amount will be paid to the alternate payee in a lump-sum distribution as soon as administratively practicable after the date specified above and a delayed distribution option will not be available to the alternate payee. 13.6 Brokerage Fees. Any brokerage fees incurred to accommodate any distribution in cash that requires that shares of Company Stock be sold to allow for such distribution (other than a distribution of cash in lieu of a fractional share) will be reduced to reflect any broker fees incurred on the sale of Company Stock. 13.7 Put Option. If shares of Company Stock are either not readily tradable on an established securities market, or are subject to a trading limitation when such shares are distributed, such shares will be subject to the same "put option" as provided under the ESOP. 13.8 No Other Benefits. No benefits other than those specifically provided for in the Plan document will be provided under the Plan. 13.9 Source of Benefits. All benefits to which any person becomes entitled under the Plan will be provided only out of the Trust Fund and only to the extent that the Trust Fund is adequate therefor. The Participants and Beneficiaries assume all risk connected with any decrease in the market value of shares of Company Stock or any other assets held under the Plan, and the Company and its Affiliate do not in any way guarantee the Trust Fund against any loss or depreciation, or the payment of any amount, that may be or become due to any person from the Trust Fund. 13.10 Incompetent Payee. If a person entitled to payments hereunder is in the opinion of the Company unable to care for his/her affairs because of a mental or physical condition, any payment due such person may be made to such person's guardian, conservator, or other legal personal representative upon furnishing the Company with evidence satisfactory to the Company of such status. Prior to the furnishing of such evidence, the Company may cause payments due the person to be made, for such person's use and benefit, to any person or institution then in the opinion of the Company caring for or maintaining the person. The Company will have no liability with respect to payments so made and will have no duty to make inquiry as to the competence of any person entitled to receive payments hereunder. 28 Page 29 13.11 No Assignment or Alienation of Benefits. The interests of any person who is entitled to benefits under the Plan may not in any manner whatsoever be assigned or alienated, whether voluntarily or involuntarily, directly or indirectly, except as expressly permitted under Code 401(a)(13). 13.12 Payment of Taxes. The Trustee may pay any estate, inheritance, income, or other tax, charge, or assessment attributable to any benefit payable hereunder which in the Trustee's opinion it will be or may be required to pay out of such benefit. The Trustee may require, before making any payment, such release or other document from any taxing authority and such indemnity from the intended payee as the Trustee will deem necessary for its protection. 13.13 Conditions Precedent. No person will be entitled to a benefit until his/her right to such benefit has been finally determined by the Company nor until he/she has submitted to the Company relevant data reasonably requested by the Company, including, but not limited to, proof of birth or death. 13.14 Delay of Distribution in Event of Stock Dividend or Split. The Company may direct that, no distribution will be made between the record date and the ex-date of any stock dividend, stock split or reverse stock split if the ex-date is after the record date. ARTICLE XIV TRANSFER OR REEMPLOYMENT 14.1 Transfer of Employment. 14.1.1 Transfers To Hourly Plan. If a Participant in this Plan becomes a participant in the ADM 401(k) Plan for Hourly Employees, the Company may arrange for transfer of his/her Account under this Plan to a comparable account under the ADM 401(k) Plan for Hourly Employees. 14.1.2 Transfers From Hourly Plan. If a participant in the ADM 401(k) for Hourly Employees becomes an Eligible Employee, he/she will become an Active Participant in this Plan (and will cease to be a participant in the ADM 401(k) Plan for Hourly Employees) effective for the first payroll period that begins in the calendar month after the date he/she becomes an Eligible Employee. All elections and designations made under the ADM 401(k) Plan for Hourly Employees (including contribution elections and Beneficiary designations) will continue in effect under this Plan until modified or revoked in accordance with the terms of this Plan. The Company also may arrange for transfer of his/her account balance under such Plan to the comparable Accounts under this Plan. 14.2 Effect of Reemployment. If a Participant is reemployed by the Company or an Affiliate (while it is an Affiliate) before he/she has received full distribution of the balance of his/her Account, entitlement to a distribution will cease upon such reemployment, and will recommence in accordance with the terms of the Plan upon subsequent Termination of Employment. 29 Page 30 ARTICLE XV TRUST FUND 15.1 Composition. The assets of the Plan will be held in trust by one or more Trustees appointed by the Company under one or more trust agreements. The Company may cause the assets held under any trust agreement to be divided into any number of parts for investment purposes or any other purpose deemed necessary or advisable for the proper administration of the Plan. 15.2 No Diversion. The Trust Fund will be maintained for the exclusive purpose of providing benefits to Participants and their Beneficiaries and defraying reasonable expenses of administering the Plan. No part of the corpus or income of the Trust Fund may be used for, or diverted to, purposes other than for the exclusive benefit of Employees or their Beneficiaries. Notwithstanding the foregoing: (a) If all or any portion of a contribution is made as a result of a mistake of fact, the Trustee will, upon written request of the Company, return such portion of the contribution to the Company within one year after its payment to the Trust Fund. Earnings attributable to such portion of the contribution (or portion thereof) will not be returned but will remain in the Trust Fund, and the amount returned will be reduced by any losses attributable to such portion of the contribution. (b) Each contribution is conditioned upon the deductibility of the contribution under Code 404. To the extent the deduction is disallowed, the Trustee will return such contribution to the Company within one year after the disallowance of the deduction; however, earnings attributable to such contribution (or disallowed portion thereof) will not be returned but will remain in the Trust Fund, and the amount returned will be reduced by any losses attributable to such contribution (or disallowed portion thereof). In the case of any such return of contribution, the Company will cause such adjustments to be made to the Accounts of Participants as it considers fair and equitable under the circumstances resulting in the return of such contribution. 15.3 Funding Policy. The Company will adopt a procedure, and revise it from time to time as it considers advisable, for establishing and carrying out a funding policy and method consistent with the objectives of the Plan and the requirements of ERISA. 15.4 Share Registration. Interests in the Plan, and any shares of Company Stock contributed by or purchased from the Company will be registered in accordance with requirements prescribed by the Securities and Exchange Commission. The number of shares so registered will be appropriately adjusted to reflect any stock dividends, stock splits, or other similar changes. 30 Page 31 15.5 Purchase/Sale of Company Stock. 15.5.1 Purchases of Company Stock. If it is necessary to purchase Company Stock for the Trust Fund, such purchase may be on the open market or from the Company. If shares are purchased from the Company, the purchase will be made at the closing price of a share of Company Stock on the New York Stock Exchange for the business day immediately preceding the transaction (as reported the next following business day in The Wall Street Journal), and no commission will be paid on any purchase from the Company. 15.5.2 Sales of Company Stock. If it is necessary to convert shares of Company Stock held in the Trust Fund to cash to provide for a distribution or loan, or for any other reason required under the Plan, conversion may be made by exchanging such shares for cash (if any) then held in the Trust Fund and credited to Accounts, or by selling such shares on the open market or to the Company. If shares are exchanged for cash then held in the Trust Fund or sold to the Company, the exchange or sale will be made at the closing price of a share of Company Stock on the New York Stock Exchange for the business day immediately preceding the transaction (as reported the next following business day in The Wall Street Journal), and no commission will be paid on any sale to the Company. ARTICLE XVI ADMINISTRATION 16.1 Administration. 16.1.1 Administrator. The Company is the "administrator" of the Plan, with authority to control and manage the operation and administration of the Plan and make all decisions and determinations incident thereto. Action on behalf of the Company as administrator may be taken by any of the following: (a) Its Board of Directors (or a committee thereof). (b) Its Chief Executive Officer. (c) Its Benefit Plans Committee. (d) Any individual, committee, or entity to whom responsibility for the operation and administration of the Plan is allocated to by action of one of the above. 16.1.2 Third-Party Service Providers. The Company may from time to time contract with or appoint a recordkeeper or other third-party service provider for the Plan. Any such recordkeeper or other third-party service provider will serve in a nondiscretionary capacity and will act in accordance with directions given and/or procedures established by the Company. 31 Page 32 16.2 Certain Fiduciary Provisions. The Company is a "named fiduciary" of the Plan with authority to appoint additional named fiduciaries and to allocate responsibilities among them, and the power to appoint one or more investment managers (as defined in ERISA 3(38)) to manage any assets of the Plan (including the power to acquire and dispose of such assets). If so permitted by the Company in the appointment of a named fiduciary, such named fiduciary may designate another person to carry out any or all of the fiduciary responsibilities of the named fiduciary; except that, a named fiduciary may not designate another person to carry out any responsibilities relating to the management or control of Plan assets other than in exercise of a power granted under the trust agreement to appoint an investment manager. 16.3 Payment of Expenses. The compensation and expense reimbursements payable to any fiduciary, or to any recordkeeper or other non-discretionary service provider, any other fees and expenses incurred in the operation or administration of the Plan may be paid out of the Trust Fund if not prohibited by ERISA. Such other fees and expenses include, but are not limited to, fees and expenses for investment, education or advice services, premiums on bonds required under ERISA and direct cost incurred by the Company or any Affiliate to the extent that the payment of such amounts out of the Trust Fund is not prohibited by ERISA. 16.4 Evidence. Evidence required of anyone under the Plan may be by certificate, affidavit, document, or other instrument which the person acting in reliance thereon considers to be pertinent and reliable and to be signed, made, or presented by the proper party. 16.5 Correction of Errors. Errors may occur in the operation and administration of the Plan. The Company reserves the power to cause such equitable adjustments to be made to correct for such errors as it considers appropriate. Such adjustments will be final and binding on all persons 16.6 Claims Procedure. The Company will establish a claims procedure which must be followed by any claimant as a condition to the receipt of benefits or as a condition to receipt of any other relief under or with respect to the Plan. The claims procedure will be set forth in written procedures (which may be in the summary plan description) that will be deemed to form a part of the Plan and are incorporated by reference into the Plan. 16.7 Waiver of Notice. Any notice required hereunder may be waived by the person entitled thereto. 16.8 Agent For Legal Process. The Company will be the agent for service of legal process with respect to any matter concerning the Plan (unless it designates some other entity or person as such agent). 16.9 Indemnification. The Company and its Affiliates jointly and severally agree to indemnify and hold harmless, to the extent permitted by law, each director, officer, and Employee against any and all liabilities, losses, costs, or expenses (including legal fees) of whatsoever kind and nature that may be imposed on, incurred by, or asserted against such person at any time by reason of such person's services in the administration of the Plan, but only if such person did not act dishonestly, or in bad faith, or in willful violation of the law or regulations under which such liability, loss, cost, or expense arises. 32 Page 33 16.10 Exercise of Authority. The Company and any person who has authority with respect to the management, administration or investment of the Plan may exercise that authority in its/his/her full discretion, subject only to the duties imposed under ERISA. This discretionary authority includes, but is not limited to, the authority to make any and all factual determinations and interpret all terms and provisions of this document (or any other document established for use in the administration of the Plan) relevant to the issue under consideration. The exercise of authority will be binding upon all persons; and it is intended that the exercise of authority be given deference in all courts of law to the greatest extent allowed under law, and that it not be overturned or set aside by any court of law unless found to be arbitrary and capricious, or made in bad faith. 16.11 Telephonic or Electronic Notices and Transactions. Any notice that is required to be given under the Plan to a Participant or Beneficiary, and any action that can be taken under the Plan by a Participant or Beneficiary (including enrollments, changes in deferral percentages, loans, withdrawals, distributions, investment changes, consents, etc.), may be by means of voice response or other electronic system to the extent so authorized by the Company and permitted under the Code. ARTICLE XVII AMENDMENT, TERMINATION, MERGER 17.1 Amendment. 17.1.1 Amendment. The Company expressly reserves the right to amend the Plan in whole or in part at any time and from time to time. An amendment may be adopted: (a) By resolution of the Board of Directors. (b) By signed writing of the Chief Executive Officer. (c) By signed writing of the Benefit Plans Committee to the extent amendment authority has been delegated by the Board of Directors. (d) By signed writing of any person to whom amendment authority has been delegated by action of one of the above. No action by any person or body with amendment authority will constitute an amendment to the Plan unless it is expressly designated as an amendment to the Plan. 33 Page 34 17.1.2 Effect on Prior Operation of Plan. An amendment will not affect the operation of the Plan or the rights of any Participant retroactive to a date prior to the effective date of the amendment. The Account of a Participant (and all payment options and other rights with respect thereto) will be determined and paid in accordance with the terms of the Plan in effect as of his/her Termination of Employment, without regard to any subsequent amendment to the Plan (including an amendment with an effective date retroactive to a date prior to Termination of Employment) unless such amendment is required by law to be applied to the Participant or the amendment expressly provides that it will apply to Participants who have already had a Termination of Employment. The Company reserves the right to adopt an amendment with a retroactive effective date to the extent that retroactive application of the amendment is required by law or for any other reason deemed appropriate by the Company. 17.1.3 Effect on Vesting. An amendment will not reduce the vested percentage of a Participant determined as of the later of the effective or adoption date of the amendment. Further, if the Company amends the vesting schedule under the Plan, with respect to any Participant who has three (3) or more years of vesting service (determined using the elapsed time methodology set forth in ERISA Reg. 2530.200b- 9), the Company either will permit such Participant to elect to have his/her vested percentage computed without regard to such amendment or will amend the Plan to provide that the vested interest of such Participant will be the greater of his/her vested interest with regard to such amendment or his/her vested interest without regard to such amendment. 17.1.4 Effect on Protected Benefits. An amendment will not reduce any Account balance or eliminate any optional form of benefit to the extent to prohibited under Code 411(d)(6). 17.2 Permanent Discontinuance of Contributions. The Company may completely discontinue contributions under the Plan. No Employee will become a Participant after such discontinuance and each Participant will be fully vested in his/her Account balance. Subject to the foregoing, all of the provisions of the Plan will continue in effect, and upon entitlement thereto distributions will be made in accordance with the terms of the Plan. 17.3 Termination. The Company may terminate the Plan at any time and for any reason by action of its Board of Directors. After the Plan is terminated no further contributions will be made. Distributions will be made to Participants and Beneficiaries promptly after the termination of the Plan, but not before the earliest date permitted under the Code and applicable regulations, and the Plan and any related trust agreement or group annuity contract will continue in force for the purpose of making such distributions. 17.4 Partial Termination. If the Company determines that there has been a partial termination of the Plan, any Participant affected by such partial termination will become vested in his/her Account. 17.5 Merger, Consolidation, or Transfer of Plan Assets. If the Plan is merged or consolidated with any other plan, or if assets or liabilities of the Plan are transferred to any other plan, provision will be made so that each Participant and Beneficiary would (if such other plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer that is equal to or greater than the benefit he/she would have been entitled to receive immediately before the merger, consolidation, or transfer (if the Plan had then terminated). 34 Page 35 17.6 Deferral of Distributions. In the case of a complete discontinuance of contributions to the Plan or of a complete or partial termination of the Plan, the Company or the Trustee may defer any distribution of benefits to Participants and Beneficiaries with respect to which such discontinuance or termination applies (except for distributions which are required to be made under Code 401(a)(9)) until appropriate adjustment of Accounts to reflect taxes, costs, and expenses, if any, incident to such discontinuance or termination. ARTICLE XVIII PREDECESSOR PLAN ACCOUNTS 18.1 Transfers from Other Plans. The Company may from time to time arrange for the merger of another qualified defined contribution plan into this Plan, or may accept the transfer of account balances from a qualified plan maintained by a Predecessor Employer to this Plan. A Predecessor Plan Subaccount will be maintained to reflect amounts attributable to any merger or transfer (and more than one Predecessor Plan Subaccount may be maintained with respect to a given merger or transfer as deemed appropriate by the Company to Account for different contribution sources or for any other reason). 18.2 Optional Forms of Payment. All optional forms of payment available under the Predecessor Plan will be available under this Plan for a Predecessor Plan Subaccount; except that, any hardship standards on withdrawals will be as specified in this Plan, and optional forms of payment may be modified or eliminated to the extent so permitted under Code 411(d)(6). 18.3 Special Rules if Survivor Annuity Requirements Apply. 18.3.1 To Whom this Section Applies. This Section applies with respect to a Participant if: (a) The Predecessor Plan was a money purchase pension plan and after the transfer of the Predecessor Plan Account to this Plan the Predecessor Plan Subaccount remains subject to the survivor annuity requirements of Code 417; or (b) A life annuity is an available optional form of payment with respect to a Predecessor Plan Subaccount, the Participant elects to receive a life annuity and the Participant has a Spouse on the pension commencement date. 18.3.2 Payment Form. A Participant to whom this Section applies will have his/her Predecessor Plan Subaccount applied to purchase a life annuity if the Participant does not have a Spouse on his/her pension commencement date, or a qualified joint and survivor annuity if the Participant does have a Spouse on his/her pension commencement date, unless the Participant elects an optional form of payment. A Participant may elect to waive the life annuity or qualified joint and survivor annuity and instead elect to receive have his/her Predecessor Plan Subaccount paid in any optional form of payment available with respect to such Subaccount. 35 Page 36 For purposes of this Section, a "life annuity" is a an annuity providing equal periodic payments to the Participant with the last such payment due for the period in which the Participant dies; and a "qualified joint and survivor annuity" is an annuity providing equal periodic payments to the Participant with the last such payment due for the period in which the Participant dies, but with the provision that if the Participant is survived by his/her Spouse on the pension commencement date, fifty percent (50%) of the period payment will be continued to such Spouse with the last such period payment due for the period in which the Spouse dies. 18.3.3 Spousal Consent Requirement. If a Participant elects to waive the qualified joint and survivor annuity and elects to have his/her Account balance paid in an optional form of payment, the election will not take effect unless: (a) The election specifically designates a specific optional payment form and a specific joint annuitant or Beneficiary, if applicable, with respect thereto (these designations cannot be changed without further consent of the Spouse). (b) The Spouse consents in writing to the election. (c) The Spouse's consent acknowledges the effect of the election. (d) The Spouse's consent is witnessed by a notary public or an authorized representative of the Plan. Consent of the Spouse will be deemed to have been obtained if it is established to the satisfaction of the Company that such consent cannot be obtained because the Spouse cannot be located or because of such other circumstances as may be prescribed by the Secretary of the Treasury. A consent by a Spouse will be effective only with respect to such Spouse, and cannot be revoked. 18.3.4 Conditions Relating to Election of Options. A Participant will be provided with a written explanation of the terms and conditions of the life annuity or qualified joint and survivor annuity. The written explanation will include an explanation of the Participant's right to waive the life annuity or qualified joint and survivor annuity and the effect of such waiver, the Participant's right to have at least thirty (30) days to consider such waiver, the Participant's right to revoke a waiver and the effect of such revocation, and the rights of the Participant's Spouse with respect thereto. The waiver of a life annuity or qualified joint and survivor annuity and the election of an optional payment form must be made on such form and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of voice response or other electronic system under circumstances authorized by the Company). The Participant must designate on such form the specific optional payment form and, if applicable, the specific joint annuitant or Beneficiary with respect thereto. The waiver and election may be revoked by the Participant prior to the pension commencement date or, if later, prior to the end of the seven (7) day period that begins the day after the written explanation is provided to the Participant. 36 Page 37 18.3.5 Qualified Preretirement Survivor Annuity. If a Participant to whom this Section applies dies before commencement of the life annuity or qualified joint and survivor annuity, and if the Participant has a Spouse on the date of death, the Account balance of the Participant will be applied to purchase an annuity for the life of the Spouse unless the Spouse files a written election of some other form of payment after the Participant's death and prior to the due date of the first benefit payment to the Spouse. ARTICLE XIX MISCELLANEOUS PROVISIONS 19.1 Special Top-Heavy Rules. The following provisions apply in any Plan Year in which the Plan is top-heavy. 19.1.1 Minimum Contribution. If the Plan is top-heavy for a Plan Year, a minimum contribution will be made for such Plan Year on behalf of each Active Participant who is not a Key Employee and who is employed with the Company or an Affiliate on the last day of such Plan Year. The minimum contribution will equal that percentage of the Participant's compensation for the Plan Year which is the smaller of: (a) Three percent (3%). (b) The percentage which is the largest percentage of compensation allocated to any Key Employee from employer contributions for such Plan Year. The 401(k) Contributions made on behalf of non-key Employees will not be counted toward the minimum contribution required under this Section (however, such contributions made on behalf of Key Employees will be counted for purposes of determining the percentage in (b)). 19.1.2 Definitions. The following terms have the following meanings in this Section: (a) "Compensation" means compensation as defined in Sec. 6.3.2, but disregarding any amounts in excess of the limit in effect under Code 401(a)(17). (b) "Determination Date" means the last day of the preceding Plan Year. (c) "Determination Period" means the Plan Year in which the applicable Determination Date occurs and the four preceding Plan Years. (d) "Key Employee" means any Employee or former Employee of the Company or an Affiliate who is defined as such under Code 416(i). (e) "Required Aggregation Group" means each qualified plan of the Company or an Affiliate in which at least one Key Employee participates in the Plan Year that contains the Determination Date or any of the four preceding Plan Years, and any other qualified plan of the Company or an Affiliate that enables such a Plan to meet the requirements of Code 401(a)(4) and 410. 37 Page 38 (f) "Permissive Aggregation Group" means the Required Aggregation Group plus any other qualified plan of the Company or an Affiliate which, when consolidated as a group with the Required Aggregation Group, would continue to satisfy the requirements of Code 401(a)(4) and 410. (g) "Present Value" for purposes of determining whether a defined benefit plan is Top-Heavy, will be calculated using the actuarial assumptions specified in the defined benefit plan for this purpose. (h) "Top-Heavy" means the condition of the Plan (or of all within the required aggregation group or permissive aggregation group) that would exist if, as of the Determination Date for the Plan Year, the Account balances plus the present value of the accrued benefits of the Key Employees exceeded sixty percent (60%) of the Account balances plus the present value of the accrued benefits of all Employees. For purposes of making this calculation: (1) The Account balances and the present value of accrued benefits will be determined as of the most recent Valuation Date that falls within the 12-month period ending on the Determination Date. (2) The Account balances and accrued benefits of a Participant who is not a Key Employee but who was a Key Employee in a prior year will be disregarded. (3) The Account balances of any Employees who has not been credited with at least one Hour of Service with the Company or an Affiliate at any time during the five (5)-year period ending on the Determination Date will be disregarded. (4) For purposes of determining if a defined benefit plan included in a Required Aggregation Group of which this Plan is a part is Top-Heavy, the accrued benefit to any Employee (other than a Key Employee) will be determined under the method that is used for accrual purposes under all defined benefit plans maintained by the Company or an Affiliate or, if there is no such method, as if such benefit accrued not more rapidly than the lowest accrual rate permitted under Code 411(b)(1)(C). (i) If an individual has not performed services for the employer at any time during the five-year period ending on the determination date with respect to a Plan Year, any Account balance or accrued benefit for such individual will not be taken into Account for such Plan Year. 19.1.3 Exception For Collective Bargaining Unit. The minimum contribution requirement described above will not apply to any Employee covered by the provisions of a collective bargaining agreement. 38 Page 39 19.2 Qualified Military Service. The Plan will comply with the requirements of Code 414(u) with respect to each Participant who is absent from service because of "qualified military service" (as defined in Code 414(u)(5)) provided that he/she returns to employment within such period after the end of the qualified military service as is prescribed under Code 414(u) (or other federal law cited therein). Accordingly, any such Participant will be permitted to make additional 401(k) Contributions after his/her reemployment, will receive Matching Contributions on such 401(k) Contributions, and will receive service credit for the period of qualified military service as required under Code 414(u). 19.3 Insurance Company Not Responsible for Validity of Plan. Any insurance company that issues a contract under the Plan will not have any responsibility for the validity of the Plan. An insurance company to which an application may be submitted hereunder may accept such application and will have no duty to make any investigation or inquiry regarding the authority of the applicant to make such application or any amendment thereto or to inquire as to whether a person on whose life any contract is to be issued is entitled to such contract under the Plan. 19.4 No Guarantee of Employment. The Plan is not an employment agreement, and participation herein does not constitute a guarantee of employment with the Company or any Affiliate. 19.5 Use of Compounds of Word "Here". Use of the words "hereof", "herein", "hereunder", or similar compounds of the word "here" will mean and refer to the entire Plan unless the context clearly indicates to the contrary. 19.6 Construed as a Whole. The Plan is to be construed as a whole in such manner as to carry out its purpose and a given provision is not to be construed separately without relation to the context. 19.7 Headings. Headings at the beginning of Articles and Sections are for convenience of reference, are not considered a part of the text of the Plan, and will not influence its construction. 39 Page 40 ADDENDUM SPECIAL RULES FOR PLAN YEAR 2000 The ADM 401(k) Plan for Salaried Employees ("401(k) Plan") was established effective January 1, 2000, with 401(k) Contributions allowed starting August 1, 2000. Prior to August 1, 2000, Before- Tax Contributions were allowed under the ADM Employee Stock Ownership Plan ("ESOP") for Salaried Employees, and after that date, 401(k) Contributions are allowed under the 401(k) Plan. Certain transition rules will apply as a result of the adoption of the 401(k) Plan that are relevant only to the Plan Year beginning January 1, 2000, and ending December 31, 2000, and such rules are set forth in this Addendum. I TRANSFER OF DIVERSIFIED AMOUNTS The ESOP previously contained Subaccounts that were invested in investment funds other than Company Stock, including Predecessor Plan Accounts and Accounts that were diversified after age fifty- five (55) at the election of the Participant. Such Subaccounts will be transferred to the 401(k) Plan on or as soon as administratively practicable after August 1, 2000, to be established in a comparable Subaccount under the 401(k) Plan on behalf of the Participant. II CALCULATION OF MATCHING CONTRIBUTION The Matching Contribution under the ESOP for the Plan Year will be calculated based upon both Before-Tax Contributions made under the ESOP prior to August 1, 2000, and 401(k) Contributions made under the 401(k) Plan after August 1, 2000. III APPLICATION OF CERTAIN LIMITS AND TESTS II.2 Application of 402(g) Limit. The Before-Tax Contributions made under the ESOP prior to August 1, 2000, and 401(k) Contributions made under the 401(k) Plan after August 1, 2000 (together with elective deferrals under any other plan maintained by the Company or any Affiliate), will not exceed the limit in effect under Code 402(g) for the Plan Year. III.2 Application of 401(k)/401(m) Nondiscrimination Test. The average deferral percentage test of Code 401(k)(3) will be applied separately with respect to Before-Tax Contributions made under the ESOP prior to August 1, 2000, and 401(k) Contributions made under the 401(k) Plan, with each test applied based on compensation (using a definition under Code 414(s)) for the full Plan Year (but disregarding amounts paid prior to the date on which an Eligible Employee became an Active Participant or ceased to be an Active Participant). 40 Page 41 The aggregate contribution percentage test of Code 401(m) will be applied with respect to Matching Contributions made under the ESOP both prior to and after August 1, 2000. III.3 Correction to Comply with Code 415. If a Participant has Annual Additions in excess of the limits under Code 415; first, 401(k) Contributions (including investment gain) will be refunded to the Participant as provided in the 401(k) Plan; second, Before-Tax Contributions (including investment gain) will be refunded to the Participant; and finally the Matching Contributions will be forfeited as provided in the ESOP. 41 EX-4.4 3 0003.txt HOURLY Page 1 401(K) PLAN FOR HOURLY EMPLOYEES (As Adopted Effective January 1, 2000) 1 Page 2 401(K) PLAN FOR HOURLY EMPLOYEES TABLE OF CONTENTS ARTICLE I INTRODUCTION 1 1.1 Plan; Purpose 1 1.2 Qualified Profit Sharing Plan (With 401(k) Arrangement) 1 1.3 Plan Document 1 1.4 Effective Date of Document 1 ARTICLE II DEFINITIONS AND CONSTRUCTION 1 2.1 Definitions 1 2.2 Choice of Law 5 ARTICLE III PARTICIPATION 5 3.1 Start of Participation 5 ARTICLE IV EMPLOYEE CONTRIBUTIONS 6 4.1 401(k) Contributions 6 4.2 After-Tax Contributions 6 4.3 Rollover Contributions 6 4.4 Transfers from ESOP 6 4.5 Form of Contribution 7 ARTICLE V EMPLOYER CONTRIBUTIONS 7 ARTICLE VI CONTRIBUTION LIMITS 7 6.1 Code Section 402(g) Limit on 401(k) Contributions 7 6.2 Code Section 401(k) Nondiscrimination Test 7 6.3 Maximum Annual Additions 8 6.4 Deduction Limit 8 ARTICLE VII ACCOUNTS 9 7.1 Accounts 9 7.2 Valuation of Accounts 9 7.3 Statements 11 7.4 Voting Rights on Company Stock 11 7.5 Tender or Exchange Offers Regarding Company Stock 11 ARTICLE VIII INVESTMENT OF ACCOUNTS 12 8.1 Investment Options 12 8.2 Participant Loan Program 13 ARTICLE IX VESTING 13 ARTICLE X WITHDRAWALS WHILE EMPLOYED 14 10.1 Withdrawals for Hardship 14 10.2 Withdrawals After Age 59 and one half 15 10.4 Withdrawals from Predecessor Plan Subaccounts 16 10.5 Withdrawal Procedures 16 2 Page 3 ARTICLE XI DISTRIBUTIONS AFTER TERMINATION 16 11.1 Benefit on Termination of Employment 16 11.2 Time, Form and Medium of Distribution 16 11.3 Cash-Out of Small Accounts 17 11.4 Minimum Distribution Rules 17 11.5 Distribution Procedures 18 ARTICLE XII DISTRIBUTIONS AFTER DEATH 18 12.1 Benefit on Death 18 12.2 Time, Form and Medium of Distribution 18 12.3 Beneficiary Designation 18 12.4 Multiple Beneficiaries 20 12.5 Minimum Distribution Rules 20 ARTICLE XIII MISCELLANEOUS BENEFIT PROVISIONS 20 13.1 Valuation of Accounts Following Termination of Employment 20 13.2 Direct Rollover Option 20 13.3 Missing Participants or Beneficiaries 21 13.4 Distribution in Event of Certain Corporate Transactions 21 13.5 Distribution to Alternate Payee 21 13.6 Brokerage Fees 22 13.8 No Other Benefits 22 13.9 Source of Benefits 22 13.10 Incompetent Payee 22 13.11 No Assignment or Alienation of Benefits 22 13.12 Payment of Taxes 22 13.13 Conditions Precedent 22 13.14Delay of Distribution in Event of Stock Dividend or Split 22 ARTICLE XIV TRANSFER OR REEMPLOYMENT 23 14.1 Transfer of Employment 23 14.2 Effect of Reemployment 23 ARTICLE XV TRUST FUND 23 15.1 Composition 23 15.2 No Diversion 23 15.3 Funding Policy 24 15.4 Share Registration 24 15.5 Purchase/Sale of Company Stock 24 ARTICLE XVI ADMINISTRATION 24 16.1 Administration 24 16.2 Certain Fiduciary Provisions 25 16.3 Payment of Expenses 25 16.4 Evidence 25 16.5 Correction of Errors 25 16.6 Claims Procedure 25 16.7 Waiver of Notice 25 16.8 Agent For Legal Process 25 3 Page 4 16.9 Indemnification 25 16.10 Exercise of Authority 26 16.11 Telephonic or Electronic Notices and Transactions 26 ARTICLE XVII AMENDMENT, TERMINATION, MERGER 26 17.1 Amendment 26 17.2 Permanent Discontinuance of Contributions 27 17.3 Termination 27 17.4 Partial Termination 27 17.5 Merger, Consolidation, or Transfer of Plan Assets 27 17.6 Deferral of Distributions 27 ARTICLE XVIII PREDECESSOR PLAN ACCOUNTS 28 18.1 Transfers from Other Plans 28 18.2 Optional Forms of Payment 28 18.3 Special Rules if Survivor Annuity Requirements Apply 28 ARTICLE XIX MISCELLANEOUS PROVISIONS 29 19.1 Special Top-Heavy Rules 29 19.2 Qualified Military Service 31 19.3 Insurance Company Not Responsible for Validity of Plan 31 19.4 No Guarantee of Employment 31 19.5 Use of Compounds of Word "Here" 31 19.6 Construed as a Whole 31 ADDENDUM SPECIAL RULES FOR PLAN YEAR 2000 32 4 Page 5 ADM 401(K) PLAN FOR HOURLY EMPLOYEES (As Adopted Effective January 1, 2000) ARTICLE I INTRODUCTION 1.1 Plan; Purpose. The ADM 401(K) PLAN FOR HOURLY EMPLOYEES is sponsored by the Company primarily to provide Eligible Employees with a means to save for their retirement or other purposes, and also to provide Eligible Employees with a means to acquire an ownership interest in the Company. The Plan operates in coordination with the ESOP. 1.2 Qualified Profit Sharing Plan (With 401(k) Arrangement). The Plan is a profit sharing plan that is intended to qualify under Code 401(a). The Plan includes a cash or deferred arrangement that is intended to qualify under Code 401(k). 1.3 Plan Document. The Plan document consists of this document, the various appendices to this document, the List of Participating Employers for the Plan, the List of Participating Locations for the Plan, the List of Predecessor Employers for the Plan, the List of Predecessor Plan Subaccounts for the Plan and any document that is expressly incorporated by reference into the Plan. 1.4 Effective Date of Document. The Plan (as stated in this document) is effective January 1, 2000. ARTICLE II DEFINITIONS AND CONSTRUCTION 2.1 Definitions. 2.1.1 "Account" means the bookkeeping account maintained to reflect the Participant's interest in the Trust Fund. 2.1.2 "Active Participant" means an Eligible Employee who has become and remains an Active Participant under Article III. 2.1.3 "Affiliate" means any corporation that is a member of the same controlled group as the Company as defined in Code 414(b), any business entity that is under common control with the Company as defined in Code 414(c), any business entity that is a member of an affiliated service group with the Company as defined in Code 414(m), or any other business entity that is required to be aggregated and treated as one employer with the Company under Code 414(o). For purposes of applying the limits of Code 415, Code 414(b) and 414(c) will be applied as modified by Code 415(h). 5 Page 6 2.1.4 "Annual Addition" means any of the following amounts credited to the Participant as of any date within the limitation year: (a) Employee after-tax contributions credited under any defined contribution plan maintained by the Company or an Affiliate (but not rollover contributions); (b) Employer contributions credited under any defined contribution plan or simplified employee pension plan maintained by the Company or an Affiliate, including 401(k) Contributions credited under this Plan (including excess contributions distributed under Sec. 6.2, but not including excess deferrals distributed under Sec. 6.1), and including Matching and Non- Matching Contributions credited under the ESOP (including excess contributions distributed thereunder to satisfy the aggregate contribution percentage test of Code 401(m)); (c) Forfeitures credited under any defined contribution plan maintained by the Company or an Affiliate; (d) Amounts credited to any individual medical benefit account (as described in Code 415(l)(2)) under any defined benefit plan maintained by the Company or an Affiliate, provided that, such amounts will be disregarded in applying the twenty-five percent (25%) of compensation limit under Code 415(c)(1)(B); and (e) Amounts credited to any separate account for retiree medical benefits (as described in Code 419A(d)(2)) on behalf of any Key Employee under any welfare benefit fund maintained by the Company or an Affiliate. 2.1.5 "Beneficiary" means a person or persons designated as such pursuant to Sec. 12.3. 2.1.6 "Code" means the Internal Revenue Code of 1986, as amended. 2.1.7 "Company" means Archer Daniels Midland Company. 2.1.8 "Company Stock" means common stock of the Company. 2.1.9 "Eligible Employee" means the following: (a) General Rule. An Eligible Employee is an Employee who satisfies the following criteria: (1) The Employee is paid on an hourly wage basis, or is paid on a regular stated salary basis but is classified by the Company as an hourly wage employee (for example, non-supervisory employees of ARTCO). (2) The Employee is employed with a Participating Employer (while it is a Participating Employer) at a Participating Location (while it is a Participating Location). (3) The Employee is not excluded under any one of the following categories: 6 Page 7 (A) Any individual who is compensated on an hourly wage basis but who is nevertheless classified as a salaried employee by the Company, and who is eligible to participate in the ADM 401(k) Plan for Salaried Employees. (B) Any individual who is classified as a probationary or temporary employee by the Company. (C) Any individual who is classified as an independent contractor, or as having any status other than a common-law employee, by the Company (regardless of whether such individual is subsequently determined to be a common-law employee or an employee for any other purpose). (D) Any individual who is a citizen or resident of a foreign country unless the Company expressly extends eligibility to such individual, such individual does not receive contributions under any funded plan of deferred compensation in a foreign country, and such individual is on the payroll system of the Company or an Affiliate in the United States. (E) Any individual who is a Leased Employee with respect to the Company or an Affiliate. (b) Collective Bargaining Employees. An Employee is not an Eligible Employee during any period he/she is a member of a unit of Employees covered by a collective bargaining agreement unless the agreement expressly provides that he/she is eligible to participate in this Plan. For this purpose, a collective bargaining agreement will be deemed to continue in effect after it expires during the pendency of collective bargaining negotiations until the parties have negotiated to "impasse" as determined by the Company, and an Employee thereafter will be an Eligible Employee if and only if participation is part of the impasse proposal of the Company or the Employee was an Eligible Employee before the collective bargaining agreement expired and the Company elects to continue such status. (c) Authorized Leaves of Absence. An Employee will continue as an Eligible Employee during any authorized and paid leave of absence if he/she was an Eligible Employee prior to the start of such leave until Termination of Employment or the happening of any event that would have caused the Employee to cease to be an Eligible Employee if he/she had not been on a leave of absence (e.g., if his/her employer ceases to be a Participating Employer). 2.1.10 "Employee" means any common-law employee of the Company or an Affiliate (while it is an Affiliate) and any Leased Employee with respect to the Company or an Affiliate; provided that, a Leased Employee will not be an Employee if Leased Employees do not constitute more than twenty percent (20%) of the combined workforce of the Company and Affiliates and the Leased Employee is covered by a plan of the leasing organization that is described in Code 414(n)(5). 7 Page 8 An individual who is employed by an eligible foreign affiliate and who is a citizen or resident of the United States will be treated as an Employee of the Company for the period of his/her employment with the eligible foreign affiliate provided the individual does not receive contributions under any funded plan of deferred compensation with respect to remuneration received from the eligible foreign affiliate. An "eligible foreign affiliate" is any foreign entity that satisfies the following requirements: (i) ten percent (10%) or more of the voting stock or profits interest of the foreign entity is owned by the Company or a domestic Affiliate of the Company, and (ii) the Company has entered into an agreement under Code 3121(l) that applies to individuals employed by that foreign entity who are citizens or residents of the United States. 2.1.11 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. 2.1.12 "ESOP" means, as applicable to the Participant, the ADM Employee Stock Ownership Plan for Hourly Employees or the ADM Employee Stock Ownership Plan for Hourly Employees. 2.1.13 "401(k) Contribution" means a contribution made pursuant to Sec. 4.1. 2.1.14 "Highly Compensated Employee" means an Employee who was a five-percent owner (as defined in Code 414(q)(2)) at any time during the current Plan Year or the look-back period, or an Employee who received compensation in excess of the amount in effect under Code 414(q)(1)(A) for the look-back period, with "compensation" for this purpose meaning compensation as defined in Sec. 6.3.2. The "look-back period" for this purpose is the twelve-month period immediately preceding the current Plan Year. 2.1.15 "Leased Employee" means an individual defined as such under Code 414(n); generally, any individual who is not a common-law employee of the Company or an Affiliate, but who performs services for the Company or Affiliate (while it is an Affiliate) pursuant to an agreement with any other person, provided such individual has performed such services for the Company or Affiliate on a substantially full-time basis for a period of at least one year and such services are performed under the primary direction and control of the Company or Affiliate. 2.1.16 "Normal Retirement Age" means age 65. 2.1.17 "Participant" means any of the following: (a) An Active Participant; (b) An Employee or former Employee who is no longer an Active Participant but who still has an Account under the Plan; or (c) An Employee or former Employee who has a Rollover Subaccount but who has not yet become an Active Participant. 2.1.18 "Participating Employer" means the Company and any Affiliate that is included on the List of Participating Employers maintained for the Plan during the effective period specified on such list (provided that, an employer will automatically cease to be a Participating Employer as of the date it ceases to be an Affiliate). 8 Page 9 2.1.19 "Plan" means the ADM 401(k) Plan for Hourly Employees, as amended. 2.1.20 "Plan Year" means the calendar year. 2.1.21 "Predecessor Employer" means any business entity from whose employment a group of Employees has been transferred to employment with the Company or an Affiliate, or any member of a controlled group of corporations of which an Affiliate used to be a member prior to becoming a member of the controlled group of the Company. 2.1.22 "Spouse" means a person of the opposite sex to whom the Participant is legally married (including a common-law spouse in any state that recognizes common-law marriage). 2.1.23 "Termination of Employment" means resignation, discharge, retirement, death or the happening of any other event or circumstance that results in the severance of the employer-employee relationship with the Company and all Affiliates; provided that, solely to determine whether a Participant is entitled to a distribution from the Plan, a Termination of Employment will not be deemed to have occurred unless there has been a separation from service which the Company determines satisfies the requirements of Code 401(k)(2)(B)(i)(I). 2.1.24 "Trust Fund" means the trust fund or funds (or any group annuity contract with an insurance company) that serves as a funding vehicle for the Plan. 2.1.25 "Trustee" means a trustee (or insurance company) appointed and acting as such with respect to all or any portion of the Trust Fund. 2.1.26 "Valuation Date" means each day on which trading occurs on the New York Stock Exchange. 2.2 Choice of Law. The Plan will be governed by the laws of the State of Illinois to the extent that such laws are not preempted by the laws of the United States. All controversies, disputes, and claims arising hereunder must be submitted to the United States District Court for the Central District of Illinois, except as otherwise provided in any trust agreement or group annuity contract governing all or a portion of the Trust Fund. 9 Page 10 ARTICLE III PARTICIPATION 3.1 Start of Participation. 3.1.1 Participants in the ESOP Prior to August 1, 2000. An Eligible Employee who was eligible to make Before-Tax Contributions under the ESOP immediately prior to August 1, 2000, will become an Active Participant on August 1, 2000. 3.1.2 New Participants After August 1,2000. An Employee who does not become an Active Participant on August 1, 2000, will become an Active Participant on the following date: (a) The first day of the calendar month that next follows the date on which he/she completes six (6) months of continuous employment with any Controlled Group Member (while it is a Controlled Group Member), provided he/she is then an Eligible Employee; or (b) Thereafter, on the first day of the first calendar month on which he/she is an Eligible Employee. For this purpose, if an Employee terminates employment and is later rehired, his/her employment after rehire will be deemed to be continuous with his/her employment prior to the earlier termination of employment if the period of absence does not exceed one year. 3.1.3 Former Participants. A former Active Participant will again become an Active Participant on the first day of the calendar month after he/she again becomes a Eligible Employee. 3.1.4 Credit for Service with a Predecessor Employer. An Employee will receive credit for service with a Predecessor Employer for purposes of determining his/her eligibility to participate in the Plan (and such service will be treated as service with a Controlled Group Member) as required under Code 414(a) or as provided under the List of Predecessor Employers maintained for the Plan. 3.2. End of Participation. An Active Participant will continue as such for so long as he/she remains an Eligible Employee, and a Participant will continue as such until he/she receives full payment of the balance of his/her Account. ARTICLE IV EMPLOYEE CONTRIBUTIONS 4.1 401(k) Contributions. 4.1.1 401(k) Contributions. 401(k) Contributions will be made for each payroll period ending after August 1, 2000, on behalf of each Active Participant who elects to have his/her current compensation reduced in order to receive a 401(k) Contribution for such payroll period. The amount of the 401(k) Contribution will equal the amount of the reduction in current compensation. 10 Page 11 An Active Participant may elect to reduce his/her current compensation for a payroll period by any whole percent, but not less than one percent (1%) or more than the maximum specified in the applicable Appendix. An election (or the modification or revocation of an election) may be made with such frequency as is deemed appropriate by the Company, and must be made in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances authorized by the Company). An election (or modification or revocation of an election) will be effective as soon as administratively practicable after the election is made, but in no event will it be effective retroactive to a payroll date before the election is made. Any election in effect with respect to Before-Tax Contributions under the ESOP as of August 1, 2000, will continue to apply under this Plan after such date until modified or revoked by the Participant. An election will apply against "current compensation" which will consist of such payroll items as may be deemed appropriate by the Company, and will be determined without regard to the compensation limit under Code 401(a)(17). 4.1.2 Limits. 401(k) Contributions will be subject to the applicable limits set forth in Article VI, and the Company may restrict the 401(k) Contributions of the Highly Compensated Employees during the Plan Year if and in such manner as it deems appropriate in order to comply with such limits for the Plan Year. 4.2 After-Tax Contributions. An Active Participant is not required or permitted to make after-tax contributions under the Plan. 4.3 Rollover Contributions. The Company in its sole discretion may allow an Eligible Employee who receives an "eligible rollover distribution" (as defined in Code 402(c)(4)) from another qualified plan to rollover such distribution to this Plan. An Eligible Employee who makes a rollover will not become an Active Participant merely as a result of the rollover (and thus will not be eligible to make 401(k) Contributions) until he/she has become an Active Participant in accordance with the terms of the Plan. A rollover election must be made in such manner and in accordance with such rules as may be prescribed for this purpose by the Company. 4.4 Transfers from ESOP. An Active Participant may elect to transfer amounts credited to his/her Account under the ESOP to this Plan under the circumstances described in the ESOP. 4.5 Form of Contribution. 401(k) Contributions attributable to a given payroll period will be paid to the Trust Fund as soon as administratively practicable after the close of such payroll period, but not later then the 15th day of the calendar month following the close of such payroll period. 401(k) Contributions will generally be paid in cash, but may be paid in shares of Company Stock at the sole discretion of the Company. If paid in shares of Company Stock, such shares will be valued at the closing price of a share of Company Stock on the New York Stock Exchange for the business day immediately preceding the day the Company directs its transfer agent to issue such shares to the Trust Fund (as reported the next following business day in The Wall Street Journal). 11 Page 12 ARTICLE V EMPLOYER CONTRIBUTIONS The Plan is designed to operate in coordination with the ESOP. Accordingly, no employer contributions will be made under this Plan but will be made under the ESOP. ARTICLE VI CONTRIBUTION LIMITS 6.1 Code Section 402(g) Limit on 401(k) Contributions. The 401(k) Contributions made on behalf of a Participant for a Plan Year will not exceed the limit in effect for such Plan Year under Code 402(g). If 401(k) Contributions, in combination with all other elective deferrals (as defined in Code 402(g)(3)) of the Participant for the Plan Year, exceed such limit, then the Participant may attribute all or any portion of the excess to this Plan and request that such portion be distributed from this Plan. The portion of the excess attributed to this Plan will first be reduced by the amount of any reduction in 401(k) Contributions made under Sec. 6.2.1. The remaining excess, adjusted for investment gain or loss, will be distributed as soon as administratively practicable after a request for distribution is filed by the Participant (but not later than the April 15 following the close of the Plan Year). Any such request for distribution must be filed by March 1 following the close of the Plan Year in such manner and in accordance with such rules as will be prescribed for this purpose by the Company. The investment gain or loss allocable to an excess hereunder will be determined in the same manner generally used for allocating investment gain or loss to Accounts, and will include only investment gain or loss for the Plan Year (and not investment gain or loss for the period from the close of the Plan Year to the date of the distribution). For purposes of determining investment gain or loss, distributions will be deemed to consist of contributions made in reverse order of time ("last-in, first-out"), starting with the last contributions made for the Plan Year. 6.2 Code Section 401(k) Nondiscrimination Test. 6.2.1 Code Section 401(k) Test. The Plan will satisfy the "average deferral percentage test" of Code 401(k)(3) each Plan Year. If such test is not satisfied for a Plan Year, then the 401(k) Contributions made on behalf of Highly Compensated Employees for such Plan Year will be reduced to the extent necessary to satisfy such test, with the amount of the reduction to be determined and allocated among the Highly Compensated Employees in the manner prescribed by Code 401(k). The excess allocated to each Highly Compensated Employee, adjusted for investment gain or loss, will be distributed to the Participant as soon as administratively practicable after the close of the Plan Year (but not later than the close of the next Plan Year). 12 Page 13 The investment gain or loss allocable to an excess hereunder will be determined in the same manner generally used for allocating investment gain or loss to Accounts, and will include only investment gain or loss for the Plan Year (and not investment gain or loss for the period from the close of the Plan Year to the date of the distribution). For purposes of determining investment gain or loss, distributions will be deemed to consist of contributions made in reverse order of time ("last-in, first-out"), starting with the last contributions made for the Plan Year. The average deferral percentage test will be applied using the current year testing method. 6.2.2 Multiple Use of the Alternative Limitations. The Plan, in coordination with the ESOP, will satisfy the "multiple use" test of Code 401(m)(9) each Plan Year. If such test is not satisfied for any Plan Year, then the 401(k) Contributions made on behalf of Highly Compensated Employees for such Plan Year will be reduced to the extent necessary to satisfy such test in accordance with Sec. 6.2.1. 6.2.3 Incorporation of Guidance. All nondiscrimination tests will be applied by reference to current regulations and subsequent guidance issued by the IRS. 6.3 Maximum Annual Additions. 6.3.1 Defined Contribution Plan Limit. The Annual Additions with respect to a Participant for a limitation year will not exceed the lesser of: (a) The dollar amount in effect for such limitation year under Code 415(c)(1)(A)), or (b) Twenty-five percent (25%) of the Participant's compensation for the limitation year. If a Participant has Annual Additions under more than one defined contribution plan maintained by the Company or an Affiliate, the Annual Additions under all such plans will not exceed the above-specified limit. To the extent necessary to comply with this limit a refund will first be made of the 401(k) Contributions or other elective deferrals (as defined in Code 402(g)(3)) made by the Participant, adjusted for investment gains (if such type of contribution has been made under more than one plan, then the refunds will be made prorata from such plans). For purposes of determining investment gain, refunds will be deemed to consist of contributions made in reverse order of time ("last-in, first-out"), starting with the last contributions made for the limitation year. The "limitation year" for this purpose is the Plan Year. 6.3.2 Compensation. For purposes of applying the limits of Code 415, "compensation" means compensation as defined in Code 415(c)(3), and includes those items specified in Treas. Reg. 1.415-2(d)(2) and does not include those items specified in Treas. Reg. 1.415-2(d)(3). "Compensation" also includes 401(k) Contributions and other elective deferrals (as defined in Code 402(g)(3)), and any amounts that are contributed or deferred at the election of the Participant and that are not includible in gross income by reason of Code 125. 13 Page 14 6.4 Deduction Limit. The contributions made for any Plan Year will not exceed the maximum amount allowable as a deduction in computing the taxable income for federal income tax purposes of the Company and its Affiliates for the taxable year of the Company that ends with or within the Plan Year, and each contribution is expressly conditioned upon its being deductible under Code 404. ARTICLE VII ACCOUNTS 7.1 Accounts. 7.1.1 Types of Subaccounts. The following Subaccounts will be maintained under the Plan as part of the Account of each Participant: (a) A "401(k) Subaccount" to reflect amounts attributable to 401(k) Contributions made under this Plan, and to amounts attributable to balances transferred at the election of the Participant from his/her Before-Tax Subaccount under the ESOP to this Plan. (b) A "Match Transfer Subaccount" to reflect amounts attributable to balances transferred at the election of the Participant from his/her Matching Subaccount under the ESOP to this Plan. (c) A "Non-Match Transfer Subaccount" to reflect amounts attributable to balances transferred at the election of the Participant from his/her Non-Matching Subaccount under the ESOP to this Plan. (d) A "Predecessor Plan Subaccount" to reflect amounts attributable to any transfer received from a Predecessor Plan (and more than one Predecessor Plan Subaccount may be maintained with respect to a given merger or transfer as deemed appropriate by the Company to Account for different contribution sources). Additional Subaccounts may also be maintained if considered appropriate in the administration of the Plan. 7.1.2 Balance of Accounts. A Subaccount will have a cash balance expressed in United States Dollars, plus a stock balance expressed in shares of Company Stock to the extent the Subaccount is invested in Company Stock. 7.1.3 Accounts for Bookkeeping Only. Accounts and Subaccounts are for bookkeeping purposes only and the maintenance of Accounts and Subaccounts will not require any segregation of assets of the Trust Fund. 7.2 Valuation of Accounts. 7.2.1 Daily Adjustments. Subaccounts will be adjusted as of each Valuation Date as follows: 14 Page 15 (a) Contributions. Contributions made with respect to a Participant will be added to the balance of the appropriate Subaccount as soon as administratively practicable after such contributions are paid into the Trust Fund; provided that, for purposes of applying the nondiscrimination tests under Code 401(a)(4) and 401(k), for purposes of determining the maximum allocations under Code 415, for purposes of calculating the deductions under Code 404 and for any other qualification provision of the Code, a contribution will be treated as having been made for the Plan Year designated by the Company provided that the contribution is paid into the Trust Fund by such deadline as may be prescribed for the applicable provision of the Code. (b) Gain or Loss on Investment Funds. The gain or loss on the mutual funds or other investment options in which Subaccounts are invested will be reflected in such Subaccounts as provided in Sec. 8.1.2. (c) Loan Interest Payments. The interest payments received on a loan made to a Participant will be added to the balance of the appropriate Subaccount as soon as administratively practicable after such interest payments are paid into the Trust Fund. Interest accrued but unpaid on a loan on the date of any distribution from a Subaccount against which the loan is to be offset will be added to the balance of the Subaccount prior to such offset (or as of such earlier date as may be specified in the loan procedures for the participant loan program). (d) Cash Dividends. The cash dividends paid on shares of Company Stock held by the Trust Fund as of the record date of such dividend will be allocated among the Subaccounts and the portion allocated to each Subaccount will be added to balance of the Subaccount as soon as administratively practicable after such dividends are paid into the Trust Fund. The portion of such cash dividends allocated to each Participant Subaccount will be determined by multiplying the total cash dividends by a fraction, the numerator of which is the number of shares of Company Stock credited to the Subaccount as of the date the dividends are paid into the Trust Fund (or as of such other date as may be established by the Company) and the denominator of which is the total number of shares of Company Stock held in all Participant Subaccounts as of the date the dividends are paid into the Trust Fund (or as of such other date as may be established by the Company). (e) Stock Dividends and Splits. The stock dividends paid on shares of Company Stock credited to any Subaccount of a Participant as of the record date of such dividend, and stock splits or reverse stock splits with respect to shares of Company Stock credited to any Subaccount of a Participant as of the record date of such split, will be added to the balance of the Subaccount as soon as administratively practicable after the additional shares resulting from such stock dividend, stock split or reverse stock split are paid into the Trust Fund. (f) Withdrawals and Distributions. The withdrawals and distributions made from a Subaccount will be subtracted from the balance of the Subaccount as of the date the withdrawal or distribution is made from the Trust Fund. 15 Page 16 Any items of income, gain or loss, or expense not provided for under the above provisions and not applied to pay expenses of the Plan will be allocated among the Subaccounts in accordance with rules prescribed for this purpose by the Company and the portion allocated to each will be added to or subtracted from the Subaccount as of the date established by the Company. 7.2.2 Processing Transactions Involving Accounts. Accounts shall be adjusted to reflect contributions, distributions and other transactions as provided in Sec. 7.2.1. However, all information necessary to properly reflect a given transaction in the Subaccounts may not be immediately available, in which case the transaction will be reflected in the Subaccounts when such information is received and processed. Further, subject to express limits that may be imposed under the Code, the Company reserves the right to delay the processing of any contribution, distribution or other transaction for any legitimate business reason (including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, force majeure, the failure of a service provider to timely receive net asset values or prices, or to correct for its errors or omissions or the errors or omissions of any service provider). With respect to any contribution, distribution or other transaction, the processing date of the transaction will be considered the applicable Valuation Date for that transaction and will be binding for all purposes of the Plan. 7.3 Statements. The Company may cause benefit statements to be issued from time to time advising Participants of the status of their Accounts, but it is not required to issue benefit statements and the issuance of such benefit statements (and any errors that may be reflected on benefit statements) will not in any way alter or affect the rights of Participants with respect to the Trust Fund. 7.4 Voting Rights on Company Stock. 7.4.1 Voting of Allocated Shares. A Participant (or Beneficiary of a deceased Participant) may instruct the Trustee as to how to vote shares of Company Stock credited to his/her Account on any matter submitted for a vote to shareholders of the Company. The number of shares with respect to which a Participant may provide voting instructions will equal the number of full and fractional shares credited to his/her Account as of the record date for determining the shareholders entitled to vote at the shareholder meeting. The Company will cause the proxy materials that are sent to shareholders to be sent to Participants prior to the shareholders meeting at which the vote is to be cast. The Company or Trustee will establish a deadline by which instructions must be received from Participants; the Trustee will tabulate the instructions received by that deadline, will determine the number of votes for and against each proposal, and will vote the allocated shares in accordance with the directions received. 7.4.2 Voting of Unallocated Shares/Shares for Which Directions Not Received. The Trustee will vote all shares of Company Stock credited to Accounts for which instructions from the Participants (or Beneficiaries) have not been received by the established deadline in the same proportion as the vote cast pursuant to Sec. 7.4.1. 7.4.3 Named Fiduciary. A Participant (or Beneficiary) will be a "named fiduciary" to the extent of the voting control granted under this Section. 16 Page 17 7.5 Tender or Exchange Offers Regarding Company Stock. 7.5.1 Tender of Allocated Shares. A Participant (or Beneficiary of a deceased Participant) may instruct the Trustee as to whether or not to tender or exchange shares of Company Stock credited to his/her Account in any tender or exchange offer for shares of Company Stock. The number of shares with respect to which a Participant may provide instructions will equal the number of full and fractional shares credited to his/her Account as of a date established by the Company that precedes the date on which a response is required to the offer (with appropriate adjustments to reflect subsequent transactions with respect to the Account). The Company will use reasonable efforts to cause each Participant to be sent a notice of the terms of any tender or exchange offer, and to be provided with forms by which the Participant may instruct the Trustee to tender shares of Company Stock credited to his/her Account, to the extent permitted under the terms of such offer. The Company or Trustee will establish a deadline by which instructions must be received from Participants; the Trustee will tabulate the instructions received by that deadline, will determine the number of shares to tender and retain, and will tender or retain the allocated shares in accordance with the directions received. A Participant (or Beneficiary ) may not instruct the Trustee to tender or exchange some but less than all of the shares of Company Stock credited to his/her Account, and an instruction to tender or exchange less than all will be deemed to be an instruction not to tender or exchange any shares of Company Stock credited to his/her Account. 7.5.2 Tender of Unallocated Shares/Shares for Which No Directions Received. The Trustee will tender or exchange, or retain, shares of Company Stock credited to Participant Accounts for which instructions from the Participant (or Beneficiary) have not been received by the established deadline, in the same proportion as the decision made in Sec. 7.5.1. 7.5.3 Named Fiduciary. A Participant (or Beneficiary) will be a "named fiduciary" to the extent of the investment control granted under this Section. ARTICLE VIII INVESTMENT OF ACCOUNTS 8.1 Investment Options. 8.1.1 Investment Options. The Company will determine the investment options that will be made available under the Plan, which may include mutual funds, common or commingled investment funds, a group annuity, deposit administration or separate account contract issued by an insurance company, Company Stock (maintained using share accounting or as part of a pooled investment fund using unit accounting) or any other investment option deemed appropriate by the Company. The Company may at any time and from time to time add to or remove from the investment options; provided that, at least three (3) investment options will be available at all times under the Plan. A Participant (or Beneficiary following the death of the Participant) will be allowed to direct the investment of his/her Subaccounts among the investment options available under the Plan. The Plan is intended to comply with ERISA 404(c). 17 Page 18 8.1.2 Investment Gains or Losses. Investment gains or losses of the Trust Fund with respect to an investment option will be allocated as follows: (a) In the case of any mutual fund, the value of that portion of a Subaccount invested in the mutual fund as of any date will equal the value of a share in such fund multiplied by the number of shares credited to the Subaccount. (b) In the case of any pooled investment fund, gains or losses on the pooled investment fund will be allocated among the Subaccounts in proportion to the value of that portion of each Subaccount invested in such fund immediately prior to the allocation, and the gain or loss allocated to each will be credited to or charged against the Subaccount. Alternatively, unit values may be established for a pooled investment fund in accordance with investment rules prescribed for this purpose by the Company, and the value of that portion of a Subaccount invested in a pooled investment fund will equal the value of a unit in such fund multiplied by the number of units credited to the Subaccount. (c) In the case of any investment that is held specifically for a Subaccount, any gain or loss on such investment will be credited to or charged against the Subaccount. Any investment gain or loss of the Trust Fund that is not directly attributable to the investment of the Account of any Participant (including, for example, any "float" earned on the disbursement account established for the Plan and not treated as part of the compensation of the Trustee or paying agent for the Plan, and any 12b-1 or similar fees paid to the Plan) will be applied to pay administrative expenses of the Plan, with any excess remaining at the close of the Plan Year being allocated among the Accounts in accordance with rules established for this purpose by the Company. 8.1.3. Investment Direction Procedures. Investment directions may be given with such frequency as is deemed appropriate by the Company, and must be made in such percentage or dollar increments, in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances so authorized by the Company). All investment directions will be complete as to the terms of the investment transaction and will remain in effect until a new investment direction is filed by the Participant. 8.1.4 Processing Investment Transactions. Investment directions will be processed as soon as administratively practicable after proper investment directions are received from the Participant. Neither the Plan nor the Company provides a guarantee that investment directions will be processed on a daily basis, or provides a guarantee in any respect as to the processing time of an investment direction. Notwithstanding the general provisions of Sec. 7.2.1, the Company reserves the right to not value an investment option or a Subaccount on any given Valuation Date for any reason deemed appropriate by the Company. The Company further reserves the right to delay the processing of any investment transaction for any legitimate business reason (including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, force majeure, the failure of a service provider to timely receive values or prices, to correct for its errors or omissions or the errors or omissions of any service provider). With respect to any investment transaction, the processing date of the transaction will be considered the applicable Valuation Date for that transaction and will be binding for all purposes of the Plan. 18 Page 19 8.2 Participant Loan Program. The Company may establish a participant loan program in accordance with ERISA 408(b)(1), the terms and conditions of which will be determined by the Company and set forth in written loan procedures that will be deemed to form part of the Plan. The rules and regulations will apply on a uniform basis to all Participants, and will not allow for an offset against the balance of an Account upon default of a loan prior to the date distributions are permitted under the Code (regardless of whether a prior taxable event occurs in connection with the loan under Code 72(p)). ARTICLE IX VESTING A Participant will have a fully vested and nonforfeitable interest at all times in his/her Account under this Plan. ARTICLE X WITHDRAWALS WHILE EMPLOYED 10.1 Withdrawals for Hardship. 10.1.1 Withdrawal. A Participant may make a withdrawal from a Subaccount specified in 10.1.2 prior to the date he/she attains age fifty-nine and one-half (59 and one half) if the withdrawal is on account of an immediate and heavy financial need and the withdrawal is needed to alleviate the financial need. However, a withdrawal will not be allowed of an amount less than one thousand dollars ($1,000) (or the total amount available for withdrawal if less than such amount). Also, no more than one withdrawal will be allowed in any Plan Year from this Plan pursuant to this Section or from the ESOP pursuant to Sec. 10.1 of the ESOP (any withdrawal made at the same time from both plans will be treated as one withdrawal). 10.1.2 Available Subaccounts/Ordering. A withdrawal under this Section will be made from the 401(k) Subaccount. A withdrawal will be allowed under this Section only if the Participant has first received any available withdrawal from his/her Rollover Subaccount. Notwithstanding any contrary provision, a withdrawal from the 401(k) Subaccount may not exceed an amount equal to the 401(k) Contributions credited to such Subaccount. If a Participant has transferred all or any portion of his/her Before-Tax Subaccount from the ESOP to this Plan, a withdrawal from the 401(k) Subaccount may not exceed the balance of the Before-Tax Subaccount under the ESOP as of December 31, 1988, plus the amount of the Before-Tax Contributions credited to such Subaccount after December 31, 1988, and prior to August 1, 2000, plus the amount of the 401(k) Contributions credited to the 401(k) Subaccount after August 1, 2000, reduced by the amount previously withdrawn from on account of hardship from the Before-Tax Subaccount under the ESOP or the 401(k) Subaccount. 19 Page 20 10.1.3 Immediate and Heavy Financial Need. A withdrawal will be deemed to be on account of an immediate and heavy financial need only if the withdrawal is for one of the following reasons: (a) Expenses for medical care (as defined in Code 213(d)) incurred by the Participant, the Spouse of the Participant, or any dependent (as defined in Code 152) of the Participant, or expenses necessary for any of such persons to obtain such medical care. (b) Costs directly related to the purchase of the principal residence of the Participant (excluding mortgage payments). (c) Payment of tuition, related educational fees and room and board expenses for the next semester or quarter of post-secondary education for the Participant or the Spouse, child, or dependent (as defined in Code 152) of the Participant. (d) To prevent the eviction of the Participant from his/her principal residence or foreclosure on the mortgage of the principal residence of the Participant. 10.1.4 Needed to Alleviate Need. A withdrawal will be deemed to be needed to alleviate an immediate and heavy financial need only if: (a) The withdrawal amount does not exceed the amount of the immediate and heavy financial need (plus the amount necessary to pay any federal, state or local income taxes or penalties reasonably expected to result from the withdrawal as determined by the Company). (b) The Participant has obtained all distributions (other than hardship distributions) and all nontaxable loans currently available under all plans maintained by the Company or an Affiliate. (c) The Participant agrees that the 401(k) Contributions and other elective deferrals (as defined in Code 402(g)(3)) and employee contributions under all other qualified and nonqualified plans of deferred compensation (including stock option, stock purchase or similar plan) maintained by the Company or an Affiliate, will be suspended for at least twelve (12) months after the receipt of the hardship distribution. This will not prevent the "cash-less" exercise of any stock option. (d) For the calendar year immediately following the calendar year of the withdrawal, the Participant may not make elective deferrals (as defined in Code 402(g)(3)) under all plans maintained by the Company or any Affiliate in excess of the applicable limit under Code 402(g) for such next calendar year less the amount of his/her elective deferrals for the calendar year of the hardship distribution. 10.1.5 Medium of Withdrawal. A withdrawal will be made in the following medium at the election of the Participant: (a) Fully in cash; or (b) Fully in whole shares of Company Stock (with any fractional share in cash). 21 Page 22 10.2 Withdrawals After Age 59 and one half. 10.2.1 Withdrawals. A Participant may make a withdrawal from a Subaccount specified in 10.2.2. for any reason after he/she attains age fifty-nine and one-half (59 and one half). However, a withdrawal will not be allowed of an amount less than one thousand dollars ($1,000) (or the total amount available for withdrawal if less than such amount). Also, no more than one withdrawal will be allowed in any Plan Year from this Plan pursuant to this Section or from the ESOP pursuant to Sec. 10.2 of the ESOP (any withdrawal made at the same time from both plans will be treated as one withdrawal). 10.2.2 Available Subaccounts/Ordering. A withdrawal under this Section will be made from the Subaccounts in the following order: (a) 401(k) Subaccount; (b) Matching Transfer Subaccount; and (c) Non-Matching Transfer Subaccount. A withdrawal will be allowed under this Section only if the Participant has first received any available withdrawal from his/her Rollover Subaccount. 10.2.3 Medium of Withdrawal. A withdrawal will be made in the following medium at the election of the Participant: (a) Fully in cash; or (b) Fully in whole shares of Company Stock (with any fractional share in cash). 10.3 Withdrawals from Rollover Subaccounts. A Participant may make a withdrawal at any time and for any reason from a Rollover Subaccount. However, no more than one withdrawal will be allowed for any reason in any Plan Year from this Plan pursuant to this Section. 10.4 Withdrawals from Predecessor Plan Subaccounts. A Participant may make a withdrawal from a Predecessor Plan Subaccount as provided on the List of Predecessor Plan Accounts for the Plan. 10.5 Withdrawal Procedures. A withdrawal request must be made in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances authorized by the Company). ARTICLE XI DISTRIBUTIONS AFTER TERMINATION 11.1 Benefit on Termination of Employment. A Participant will be eligible to receive a distribution of the balance of his/her Account following his/her Termination of Employment in accordance with the terms of this Article. 22 Page 23 11.2 Time, Form and Medium of Distribution. 11.2.1 Time of Distribution. A distribution will be made (or distributions will commence) as soon as administratively practicable after the Participant files a request for distribution following his/her Termination of Employment, but not later than sixty (60) days after the close of the Plan Year in which he/she attains Normal Retirement Age (or in which his/her Termination of Employment occurs, if later). 11.2.2 Form of Distribution. A distribution will be made in the following form: (a) Retirements. If the Termination of Employment is a normal retirement or an early retirement under the ADM Pension Plan for Hourly Employees, or if the Participant is receiving disability payments under any long-term disability plan maintained by the Company or an Affiliate, payment will be made in either of the following forms at the election of the Participant: (1) A single-sum distribution of the full balance of his/her Account (provided he/she also receives a single-sum distribution of the full balance of his/her Account under the ESOP); or (2) Two or more partial distributions each of which (other than the final distribution) is not less than one-thousand dollars ($1,000). No more than one partial distribution may be made in any calendar year from the 401(k) Plan and/or ESOP. (b) Vested Terminations. In all other cases, the distribution will be in the form of a single-sum distribution of the full balance of his/her Account (partial distributions are not permitted). 11.2.3 Medium of Distribution. A distribution (other than from a Predecessor Plan Account) will be made in the following medium at the election of the Participant: (a) Fully in cash; or (b) Fully in whole shares of Company Stock (with any fractional share in cash). A distribution from a Predecessor Plan Subaccount will be made in cash unless otherwise specified in the List of Predecessor Plan Accounts for the Plan. 11.2.4 Default Upon Failure to Request Distribution. If the Participant fails to file a distribution request, a distribution will be made as soon as administratively practicable after the Participant attains Normal Retirement Age (or after his/her Termination of Employment occurs, if later) in the form of a single-sum distribution in whole shares of Company Stock to the extent the Account is then invested in shares of Company Stock (with the balance in cash). 11.2.5 Ordering. A partial distribution will be drawn from the Subaccounts in the following order: (a) Rollover Subaccount; 22 Page 23 (b) 401(k) Subaccount; (c) Matching Transfer Subaccount; and (d) Non-Matching Transfer Subaccount. 11.3 Cash-Out of Small Accounts. Any contrary provision notwithstanding, if the value of a Participant's Account does not exceed $5,000, a single-sum distribution of the full balance of the Account will be made to the Participant as soon as administratively practicable after his/her Termination of Employment. If the Participant fails to file an election as to the medium of distribution, the distribution will be made in cash. If the value of a Participant's Account exceeds $5,000 as of the earliest payment date available to the Participant, but subsequently falls below such amount (for example, because of distributions or investment losses) the Company may then direct that the full balance of the Account be distributed to the Participant. 11.4 Minimum Distribution Rules. Notwithstanding any contrary provision, distributions will be made as necessary to comply with the minimum distribution rules of Code 401(a)(9) (including the incidental death benefit rules of Code 401(a)(9)(G)). To calculate the minimum distribution for the first year, the initial life expectancy (or joint life and last survivor expectancy) will be determined based on the age of the Participant and his/her Beneficiary as of the birthday in the calendar year prior to the calendar year in which the required beginning date falls using the expected return multiples in Tables V and VI of Treas. Reg. 1.72-9 or, if applicable, the appropriate minimum distribution incidental benefit table in Prop. Treas. Reg. 1.401(a)(9)- 2. To calculate the minimum distribution for each succeeding year, the initial life expectancy (or joint life and last survivor expectancy) will be reduced by one for each succeeding year (and life expectancies will not be redetermined each year). A minimum distribution will be drawn from the Subaccounts in the order specified in Sec. 11.2.5. The "required beginning date" for this purpose means the April 1 of the calendar year after the later of (i) the calendar year in which he Participant attains age 70 and one half, or (ii) the calendar year of Termination of Employment. However, clause (ii) will not apply to any Participant who is more than a five-percent owner (as defined in Code 416) with respect to the Plan Year in which he/she attains age 70 and one half. 11.5 Distribution Procedures. A distribution request must be made in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances authorized by the Company). ARTICLE XII DISTRIBUTIONS AFTER DEATH 12.1 Benefit on Death. The Beneficiary of a Participant will be eligible to receive a distribution of that portion of the balance (or remaining balance) of the Participant's Account allocated to such Beneficiary following the Participant's death in accordance with the terms of this Article. 23 Page 24 12.2 Time, Form and Medium of Distribution. 12.2.1 Time of Payment. A distribution will be made as soon as administratively practicable after the death of the Participant and the entitlement of the Beneficiary has been determined by the Company. 12.2.2 Form of Distribution. A distribution will be made in the form of a single-sum distribution of the full balance payable to the Beneficiary. 12.2.3 Medium of Distribution. A distribution (other than from a Predecessor Plan Subaccount) will be made in the following medium, at the election of the Beneficiary: (a) Fully in cash; or (b) Fully in whole shares of Company Stock (with any fractional share paid in cash). A distribution from a Predecessor Plan Subaccount will be made in cash unless otherwise specified in the List of Predecessor Plan Accounts for the Plan. 12.2.4 Default Upon Failure to Request Distribution. If the Beneficiary fails to file an election as to the medium of distribution, a distribution will be made in cash. 12.3 Beneficiary Designation. 12.3.1 General Rule. A Participant may designate any person (natural or otherwise, including a trust or estate) as his/her Beneficiary to receive any balance remaining in his/her Account when he/she dies, and may change or revoke a Beneficiary designation previously made without the consent of any Beneficiary named therein. 12.3.2 Special Requirements for Married Participants. If a Participant has a Spouse at the time of death, such Spouse will be his/her Beneficiary unless: (a) The Spouse has consented in writing to the designation of a different Beneficiary; (b) The Spouse's consent acknowledges the effect of such designation; and (c) The Spouse's consent is witnessed by a notary public or an authorized representative of the Plan. Consent of a Spouse will be deemed to have been obtained if it is established to the satisfaction of the Company that such consent cannot be obtained because the Spouse cannot be located, or because of such other circumstances as may be prescribed by the Secretary of Treasury. A consent by a Spouse will be effective only with respect to such Spouse, and cannot be revoked. A Beneficiary designation that has received spousal consent cannot be changed without spousal consent. 12.3.3 Form and Method of Designation. A Beneficiary designation must be made on such form and in accordance with such rules as may be prescribed for this purpose by the Company. A Beneficiary designation will be effective (and will revoke all prior designations) only if it is received by the Company (or if sent by mail, the post-mark of the mailing is) prior to the date of death of the Participant. The Company may rely on the latest Beneficiary 24 Page 25 designation on file with it (or may direct that payment be made pursuant to the default provision of the Plan if an effective designation is not on file) and will not be liable to any person making claim for such payment under a subsequently filed Beneficiary designation or for any other reason. 12.3.4 Default Designation. If a Beneficiary designation is not on file with the Company, or if no designated Beneficiary survives the Participant, the Beneficiary will be the person or persons surviving the Participant in the first of the following classes in which there is a survivor, share and share alike: (a) The Participant's Spouse. (b) The Participant's children, except that if any of the Participant's children predecease the Participant but leave issue surviving the Participant, such issue will take by right of representation the share their parent would have taken if living. (c) The Participant's parents. (d) The Participant's brothers and sisters. (e) The Participant's estate. The identity of the Beneficiary in each case will be determined by the Company. 12.3.5 Successor Beneficiary. If a Beneficiary survives the Participant but dies before receiving the full balance to which he/she is entitled, the remaining balance will be payable to the surviving contingent Beneficiary designated by the Participant or otherwise to the estate of the deceased Beneficiary. 12.3.6 Special Rules. In the case of an Active Participant in this Plan on August 1, 2000, a Beneficiary designation in effect under the ESOP immediately prior to August 1, 2000, will be deemed to apply with respect to this Plan unless and until changed or revoked by the Participant. A Beneficiary designation in effect under a predecessor plan immediately prior to its merger into this Plan or transfer of account balance to this Plan will be deemed to be valid under this Plan with respect to the resulting Predecessor Plan Subaccount (and only such subaccount) unless and until changed or revoked by the Participant. 12.4 Multiple Beneficiaries. If more than one Beneficiary is entitled to benefits following the death of a Participant, the interest of each will be segregated for purposes of applying this Article. 12.5 Minimum Distribution Rules. Notwithstanding any contrary provision, distributions after the death of the Participant will be made as necessary to comply with the minimum distribution rules of Code 401(a)(9) (including the incidental death benefit rules of Code 401(a)(9)(G)). To comply with such minimum distribution rules, distribution of the full balance payable to all Beneficiaries will be made not later than the last day of the calendar year in which falls the fifth (5th) anniversary of the date the Participant dies. 25 Page 26 ARTICLE XIII MISCELLANEOUS BENEFIT PROVISIONS 13.1 Valuation of Accounts Following Termination of Employment. 13.1.1 Continued Adjustment of Accounts. If a distribution of all or any portion of an Account is deferred or delayed for any reason, the Account will continue to be adjusted to reflect investment gains or losses in accordance with the terms of the Plan. 13.1.2 Segregation of Accounts/Disbursement Accounts. If investments are liquidated to allow for a distribution, the resulting proceeds may be credited to a segregated account maintained under the Plan for the benefit of the person to whom the distribution is to be made, and any investment gains or losses on such segregated account will be allocated solely to such segregated account (and the Accounts of other Participants or Beneficiaries will not be affected by such investment gains or losses). Any such segregated account may be held uninvested in cash, or invested in an interest- bearing account or other short-term investment as directed by the Company pending distribution from the Plan. A disbursement account also will be established for the Plan (either with the Trustee, any affiliate of the Trustee, or any third party bank selected by the Company) to allow for any distributions from the Plan. Such disbursement account is separate and distinct from any segregated account established under the prior paragraph, and any interest or other income earned on such disbursement account will inure to the benefit of the Plan and not the Participant. Such interest or other income will be applied to pay administrative expenses of the Plan or, pursuant to agreement with the Trustee or paying agent for the Plan, will be treated as part of the compensation of the Trustee or paying agent for the Plan. In any event, a Participant will have no claim to any income on any disbursement account established for the Plan. 13.2 Direct Rollover Option. A distribution to a Participant, the surviving Spouse of a Participant, or an alternate payee under a qualified domestic relations order who is the Spouse or former Spouse of a Participant may be made in the form of a direct rollover to an individual retirement account or annuity described in Code 408 or to another qualified plan described in Code 401(a); except that, a qualified plan is not available as a rollover alternative in the case of the surviving Spouse of the Participant. A direct rollover will be allowed only to the extent that the distribution is an "eligible rollover distribution" (as defined in Code 402(f)) (e.g., an eligible rollover distribution does not include a hardship distribution from a 401(k) Subaccount, a distribution that is part of a series of installments payable over a period of ten (10) years or more or a distribution that is required under Code 401(a)(9)). The recipient of an eligible rollover distribution must provide the Company with the information necessary to accomplish the direct rollover in such manner and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of a voice response or other electronic system under circumstances authorized by the Company). 26 Page 27 13.3 Missing Participants or Beneficiaries. A Participant or Beneficiary must maintain his/her most recent post office address on file with the Company. Any communication addressed to the Participant or Beneficiary at the post office address on file with the Company will be binding on the Participant or Beneficiary for all purposes of the Plan, and the Company is not obligated to search for any Participant or Beneficiary. If a Participant or Beneficiary fails to claim any amount payable under the Plan (or fails to cash any check drawn on the disbursement account established for the Plan), such amount will be forfeited by the Participant or Beneficiary at such time as is deemed appropriate by the Company, or may be disposed of in such other equitable manner as is deemed appropriate by the Company. Any forfeited amounts shall be transferred to the ESOP and applied to reduce Matching Contributions made to the ESOP. If a Participant or Beneficiary claims a forfeited amount prior to termination of the Plan, the value forfeited (measured as of the date of the forfeiture) shall be restored to the Participant or Beneficiary (without adjustment for subsequent income or appreciation). The Company shall make an additional contribution to the Plan as necessary to provide for the restoration. 13.4 Distribution in Event of Certain Corporate Transactions. The Company or an Affiliate may from time to time sell an interest in a subsidiary. The Company or an Affiliate also may from time to time sell a facility, division or service line and, in connection with such sale, a Participant may terminate his/her employment with the Company and become an employee of the purchaser of such facility, division or service line. In either event, the Company will determine whether a separation from service has occurred that satisfies the requirements of Code 401(k)(2)(B)(i)(I) and thus whether there has been a Termination of Employment that allows a distribution from the Plan. If the Company determines that there has not been a separation from service, the Company, in its sole discretion may nonetheless allow affected Participants to receive a distribution of their Account if it determines that either of the following events has occurred: (a) There has been a sale by the Company or an Affiliate (provided it is a corporation) of substantially all of the assets (within the meaning of Code 409(d)(2)) used in a trade or business to another corporation. (b) There has been a sale by the Company or an Affiliate (provided it is a corporation) of an interest in a subsidiary (within the meaning of Code 409(d)(3)). A distribution under this provision will be allowed only in the form of a single-sum payment to be made as of the date established by the Company that is not later than the last day of the Plan Year following this event. 13.5 Distribution to Alternate Payee. An alternate payee under a qualified domestic relations order (each as defined in Code 414(p)) may elect to receive a lump-sum distribution of the amount assigned to such individual under the order as soon as administratively practicable after the Company has determined that the order is a qualified domestic relations order (and all time for appeal of such decision has expired), or as of such later date as may be specified in the order, without regard to whether such distribution is made prior to the earliest retirement age (as defined in Code 414(p)). If the amount assigned to the alternate payee under a qualified domestic relations order does not exceed five thousand dollars ($5,000), such amount will be paid to the alternate payee in a lump-sum distribution as soon as administratively practicable after the date specified above and a delayed distribution option will not be available to the alternate payee. 27 Page 28 13.6 Brokerage Fees. Any brokerage fees incurred to accommodate any distribution in cash that requires that shares of Company Stock be sold to allow for such distribution (other than a distribution of cash in lieu of a fractional share) will be reduced to reflect any broker fees incurred on the sale of Company Stock. 13.7 Put Option. If shares of Company Stock are either not readily tradable on an established securities market, or are subject to a trading limitation when such shares are distributed, such shares will be subject to the same "put option" as provided under the ESOP. 13.8 No Other Benefits. No benefits other than those specifically provided for in the Plan document will be provided under the Plan. 13.9 Source of Benefits. All benefits to which any person becomes entitled under the Plan will be provided only out of the Trust Fund and only to the extent that the Trust Fund is adequate therefor. The Participants and Beneficiaries assume all risk connected with any decrease in the market value of shares of Company Stock or any other assets held under the Plan, and the Company and its Affiliate do not in any way guarantee the Trust Fund against any loss or depreciation, or the payment of any amount, that may be or become due to any person from the Trust Fund. 13.10 Incompetent Payee. If a person entitled to payments hereunder is in the opinion of the Company unable to care for his/her affairs because of a mental or physical condition, any payment due such person may be made to such person's guardian, conservator, or other legal personal representative upon furnishing the Company with evidence satisfactory to the Company of such status. Prior to the furnishing of such evidence, the Company may cause payments due the person to be made, for such person's use and benefit, to any person or institution then in the opinion of the Company caring for or maintaining the person. The Company will have no liability with respect to payments so made and will have no duty to make inquiry as to the competence of any person entitled to receive payments hereunder. 13.11 No Assignment or Alienation of Benefits. The interests of any person who is entitled to benefits under the Plan may not in any manner whatsoever be assigned or alienated, whether voluntarily or involuntarily, directly or indirectly, except as expressly permitted under Code 401(a)(13). 13.12 Payment of Taxes. The Trustee may pay any estate, inheritance, income, or other tax, charge, or assessment attributable to any benefit payable hereunder which in the Trustee's opinion it will be or may be required to pay out of such benefit. The Trustee may require, before making any payment, such release or other document from any taxing authority and such indemnity from the intended payee as the Trustee will deem necessary for its protection. 13.13 Conditions Precedent. No person will be entitled to a benefit until his/her right to such benefit has been finally determined by the Company nor until he/she has submitted to the Company relevant data reasonably requested by the Company, including, but not limited to, proof of birth or death. 28 Page 29 13.14 Delay of Distribution in Event of Stock Dividend or Split. The Company may direct that, no distribution will be made between the record date and the ex-date of any stock dividend, stock split or reverse stock split if the ex-date is after the record date. ARTICLE XIV TRANSFER OR REEMPLOYMENT 14.1 Transfer of Employment. 14.1.1 Transfers To Salaried Plan. If a Participant in this Plan becomes a participant in the ADM 401(k) Plan for Salaried Employees, the Company may arrange for transfer of his/her Account under this Plan to a comparable account under the ADM 401(k) Plan for Salaried Employees. 14.1.2 Transfers From Salaried Plan. If a participant in the ADM 401(k) for Salaried Employees becomes an Eligible Employee, he/she will become an Active Participant in this Plan (and will cease to be a participant in the ADM 401(k) Plan for Salaried Employees) effective for the first payroll period that begins in the calendar month after the date he/she becomes an Eligible Employee. All elections and designations made under the ADM 401(k) Plan for Salaried Employees (including contribution elections and Beneficiary designations) will continue in effect under this Plan until modified or revoked in accordance with the terms of this Plan. The Company also may arrange for transfer of his/her account balance under such Plan to the comparable Accounts under this Plan. 14.2 Effect of Reemployment. If a Participant is reemployed by the Company or an Affiliate (while it is an Affiliate) before he/she has received full distribution of the balance of his/her Account, entitlement to a distribution will cease upon such reemployment, and will recommence in accordance with the terms of the Plan upon subsequent Termination of Employment. ARTICLE XV TRUST FUND 15.1 Composition. The assets of the Plan will be held in trust by one or more Trustees appointed by the Company under one or more trust agreements. The Company may cause the assets held under any trust agreement to be divided into any number of parts for investment purposes or any other purpose deemed necessary or advisable for the proper administration of the Plan. 15.2 No Diversion. The Trust Fund will be maintained for the exclusive purpose of providing benefits to Participants and their Beneficiaries and defraying reasonable expenses of administering the Plan. No part of the corpus or income of the Trust Fund may be used for, or diverted to, purposes other than for the exclusive benefit of Employees or their Beneficiaries. Notwithstanding the foregoing: 29 Page 30 (a) If all or any portion of a contribution is made as a result of a mistake of fact, the Trustee will, upon written request of the Company, return such portion of the contribution to the Company within one year after its payment to the Trust Fund. Earnings attributable to such portion of the contribution (or portion thereof) will not be returned but will remain in the Trust Fund, and the amount returned will be reduced by any losses attributable to such portion of the contribution. (b) Each contribution is conditioned upon the deductibility of the contribution under Code 404. To the extent the deduction is disallowed, the Trustee will return such contribution to the Company within one year after the disallowance of the deduction; however, earnings attributable to such contribution (or disallowed portion thereof) will not be returned but will remain in the Trust Fund, and the amount returned will be reduced by any losses attributable to such contribution (or disallowed portion thereof). In the case of any such return of contribution, the Company will cause such adjustments to be made to the Accounts of Participants as it considers fair and equitable under the circumstances resulting in the return of such contribution. 15.3 Funding Policy. The Company will adopt a procedure, and revise it from time to time as it considers advisable, for establishing and carrying out a funding policy and method consistent with the objectives of the Plan and the requirements of ERISA. 15.4 Share Registration. Interests in the Plan, and any shares of Company Stock contributed by or purchased from the Company will be registered in accordance with requirements prescribed by the Securities and Exchange Commission. The number of shares so registered will be appropriately adjusted to reflect any stock dividends, stock splits, or other similar changes. 15.5 Purchase/Sale of Company Stock. 15.5.1 Purchases of Company Stock. If it is necessary to purchase Company Stock for the Trust Fund, such purchase may be on the open market or from the Company. If shares are purchased from the Company, the purchase will be made at the closing price of a share of Company Stock on the New York Stock Exchange for the business day immediately preceding the transaction (as reported the next following business day in The Wall Street Journal), and no commission will be paid on any purchase from the Company. 15.5.2 Sales of Company Stock. If it is necessary to convert shares of Company Stock held in the Trust Fund to cash to provide for a distribution or loan, or for any other reason required under the Plan, conversion may be made by exchanging such shares for cash (if any) then held in the Trust Fund and credited to Accounts, or by selling such shares on the open market or to the Company. If shares are exchanged for cash then held in the Trust Fund or sold to the Company, the exchange or sale will be made at the closing price of a share of Company Stock on the New York Stock Exchange for the business day immediately preceding the transaction (as reported the next following business day in The Wall Street Journal), and no commission will be paid on any sale to the Company. 30 Page 31 ARTICLE XVI ADMINISTRATION 16.1 Administration. 16.1.1 Administrator. The Company is the "administrator" of the Plan, with authority to control and manage the operation and administration of the Plan and make all decisions and determinations incident thereto. Action on behalf of the Company as administrator may be taken by any of the following: (a) Its Board of Directors (or a committee thereof). (b) Its Chief Executive Officer. (c) Its Benefit Plans Committee. (d) Any individual, committee, or entity to whom responsibility for the operation and administration of the Plan is allocated to by action of one of the above. 16.1.2 Third-Party Service Providers. The Company may from time to time contract with or appoint a recordkeeper or other third-party service provider for the Plan. Any such recordkeeper or other third-party service provider will serve in a nondiscretionary capacity and will act in accordance with directions given and/or procedures established by the Company. 16.2 Certain Fiduciary Provisions. The Company is a "named fiduciary" of the Plan with authority to appoint additional named fiduciaries and to allocate responsibilities among them, and the power to appoint one or more investment managers (as defined in ERISA 3(38)) to manage any assets of the Plan (including the power to acquire and dispose of such assets). If so permitted by the Company in the appointment of a named fiduciary, such named fiduciary may designate another person to carry out any or all of the fiduciary responsibilities of the named fiduciary; except that, a named fiduciary may not designate another person to carry out any responsibilities relating to the management or control of Plan assets other than in exercise of a power granted under the trust agreement to appoint an investment manager. 16.3 Payment of Expenses. The compensation and expense reimbursements payable to any fiduciary, or to any recordkeeper or other non-discretionary service provider, any other fees and expenses incurred in the operation or administration of the Plan may be paid out of the Trust Fund if not prohibited by ERISA. Such other fees and expenses include, but are not limited to, fees and expenses for investment, education or advice services, premiums on bonds required under ERISA and direct cost incurred by the Company or any Affiliate to the extent that the payment of such amounts out of the Trust Fund is not prohibited by ERISA. 16.4 Evidence. Evidence required of anyone under the Plan may be by certificate, affidavit, document, or other instrument which the person acting in reliance thereon considers to be pertinent and reliable and to be signed, made, or presented by the proper party. 31 Page 32 16.5 Correction of Errors. Errors may occur in the operation and administration of the Plan. The Company reserves the power to cause such equitable adjustments to be made to correct for such errors as it considers appropriate. Such adjustments will be final and binding on all persons 16.6 Claims Procedure. The Company will establish a claims procedure which must be followed by any claimant as a condition to the receipt of benefits or as a condition to receipt of any other relief under or with respect to the Plan. The claims procedure will be set forth in written procedures (which may be in the summary plan description) that will be deemed to form a part of the Plan and are incorporated by reference into the Plan. 16.7 Waiver of Notice. Any notice required hereunder may be waived by the person entitled thereto. 16.8 Agent For Legal Process. The Company will be the agent for service of legal process with respect to any matter concerning the Plan (unless it designates some other entity or person as such agent). 16.9 Indemnification. The Company and its Affiliates jointly and severally agree to indemnify and hold harmless, to the extent permitted by law, each director, officer, and Employee against any and all liabilities, losses, costs, or expenses (including legal fees) of whatsoever kind and nature that may be imposed on, incurred by, or asserted against such person at any time by reason of such person's services in the administration of the Plan, but only if such person did not act dishonestly, or in bad faith, or in willful violation of the law or regulations under which such liability, loss, cost, or expense arises. 16.10 Exercise of Authority. The Company and any person who has authority with respect to the management, administration or investment of the Plan may exercise that authority in its/his/her full discretion, subject only to the duties imposed under ERISA. This discretionary authority includes, but is not limited to, the authority to make any and all factual determinations and interpret all terms and provisions of this document (or any other document established for use in the administration of the Plan) relevant to the issue under consideration. The exercise of authority will be binding upon all persons; and it is intended that the exercise of authority be given deference in all courts of law to the greatest extent allowed under law, and that it not be overturned or set aside by any court of law unless found to be arbitrary and capricious, or made in bad faith. 16.11 Telephonic or Electronic Notices and Transactions. Any notice that is required to be given under the Plan to a Participant or Beneficiary, and any action that can be taken under the Plan by a Participant or Beneficiary (including enrollments, changes in deferral percentages, loans, withdrawals, distributions, investment changes, consents, etc.), may be by means of voice response or other electronic system to the extent so authorized by the Company and permitted under the Code. 32 Page 33 ARTICLE XVII AMENDMENT, TERMINATION, MERGER 17.1 Amendment. 17.1.1 Amendment. The Company expressly reserves the right to amend the Plan in whole or in part at any time and from time to time. An amendment may be adopted: (a) By resolution of the Board of Directors. (b) By signed writing of the Chief Executive Officer. (c) By signed writing of the Benefit Plans Committee to the extent amendment authority has been delegated by the Board of Directors. (d) By signed writing of any person to whom amendment authority has been delegated by action of one of the above. No action by any person or body with amendment authority will constitute an amendment to the Plan unless it is expressly designated as an amendment to the Plan. 17.1.2 Effect on Prior Operation of Plan. An amendment will not affect the operation of the Plan or the rights of any Participant retroactive to a date prior to the effective date of the amendment. The Account of a Participant (and all payment options and other rights with respect thereto) will be determined and paid in accordance with the terms of the Plan in effect as of his/her Termination of Employment, without regard to any subsequent amendment to the Plan (including an amendment with an effective date retroactive to a date prior to Termination of Employment) unless such amendment is required by law to be applied to the Participant or the amendment expressly provides that it will apply to Participants who have already had a Termination of Employment. The Company reserves the right to adopt an amendment with a retroactive effective date to the extent that retroactive application of the amendment is required by law or for any other reason deemed appropriate by the Company. 17.1.3 Effect on Vesting. An amendment will not reduce the vested percentage of a Participant determined as of the later of the effective or adoption date of the amendment. Further, if the Company amends the vesting schedule under the Plan, with respect to any Participant who has three (3) or more years of vesting service (determined using the elapsed time methodology set forth in ERISA Reg. 2530.200b- 9), the Company either will permit such Participant to elect to have his/her vested percentage computed without regard to such amendment or will amend the Plan to provide that the vested interest of such Participant will be the greater of his/her vested interest with regard to such amendment or his/her vested interest without regard to such amendment. 17.1.4 Effect on Protected Benefits. An amendment will not reduce any Account balance or eliminate any optional form of benefit to the extent to prohibited under Code 411(d)(6). 33 Page 34 17.2 Permanent Discontinuance of Contributions. The Company may completely discontinue contributions under the Plan. No Employee will become a Participant after such discontinuance and each Participant will be fully vested in his/her Account balance. Subject to the foregoing, all of the provisions of the Plan will continue in effect, and upon entitlement thereto distributions will be made in accordance with the terms of the Plan. 17.3 Termination. The Company may terminate the Plan at any time and for any reason by action of its Board of Directors. After the Plan is terminated no further contributions will be made. Distributions will be made to Participants and Beneficiaries promptly after the termination of the Plan, but not before the earliest date permitted under the Code and applicable regulations, and the Plan and any related trust agreement or group annuity contract will continue in force for the purpose of making such distributions. 17.4 Partial Termination. If the Company determines that there has been a partial termination of the Plan, any Participant affected by such partial termination will become vested in his/her Account. 17.5 Merger, Consolidation, or Transfer of Plan Assets. If the Plan is merged or consolidated with any other plan, or if assets or liabilities of the Plan are transferred to any other plan, provision will be made so that each Participant and Beneficiary would (if such other plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer that is equal to or greater than the benefit he/she would have been entitled to receive immediately before the merger, consolidation, or transfer (if the Plan had then terminated). 17.6 Deferral of Distributions. In the case of a complete discontinuance of contributions to the Plan or of a complete or partial termination of the Plan, the Company or the Trustee may defer any distribution of benefits to Participants and Beneficiaries with respect to which such discontinuance or termination applies (except for distributions which are required to be made under Code 401(a)(9)) until appropriate adjustment of Accounts to reflect taxes, costs, and expenses, if any, incident to such discontinuance or termination. ARTICLE XVIII PREDECESSOR PLAN ACCOUNTS 18.1 Transfers from Other Plans. The Company may from time to time arrange for the merger of another qualified defined contribution plan into this Plan, or may accept the transfer of account balances from a qualified plan maintained by a Predecessor Employer to this Plan. A Predecessor Plan Subaccount will be maintained to reflect amounts attributable to any merger or transfer (and more than one Predecessor Plan Subaccount may be maintained with respect to a given merger or transfer as deemed appropriate by the Company to Account for different contribution sources or for any other reason). 18.2 Optional Forms of Payment. All optional forms of payment available under the Predecessor Plan will be available under this Plan for a Predecessor Plan Subaccount; except that, any hardship standards on withdrawals will be as specified in this Plan, and optional forms of payment may be modified or eliminated to the extent so permitted under Code 411(d)(6). 34 Page 35 18.3 Special Rules if Survivor Annuity Requirements Apply. 18.3.1 To Whom this Section Applies. This Section applies with respect to a Participant if: (a) The Predecessor Plan was a money purchase pension plan and after the transfer of the Predecessor Plan Account to this Plan the Predecessor Plan Subaccount remains subject to the survivor annuity requirements of Code 417; or (b) A life annuity is an available optional form of payment with respect to a Predecessor Plan Subaccount, the Participant elects to receive a life annuity and the Participant has a Spouse on the pension commencement date. 18.3.2 Payment Form. A Participant to whom this Section applies will have his/her Predecessor Plan Subaccount applied to purchase a life annuity if the Participant does not have a Spouse on his/her pension commencement date, or a qualified joint and survivor annuity if the Participant does have a Spouse on his/her pension commencement date, unless the Participant elects an optional form of payment. A Participant may elect to waive the life annuity or qualified joint and survivor annuity and instead elect to receive have his/her Predecessor Plan Subaccount paid in any optional form of payment available with respect to such Subaccount. For purposes of this Section, a "life annuity" is a an annuity providing equal periodic payments to the Participant with the last such payment due for the period in which the Participant dies; and a "qualified joint and survivor annuity" is an annuity providing equal periodic payments to the Participant with the last such payment due for the period in which the Participant dies, but with the provision that if the Participant is survived by his/her Spouse on the pension commencement date, fifty percent (50%) of the period payment will be continued to such Spouse with the last such period payment due for the period in which the Spouse dies. 18.3.3 Spousal Consent Requirement. If a Participant elects to waive the qualified joint and survivor annuity and elects to have his/her Account balance paid in an optional form of payment, the election will not take effect unless: (a) The election specifically designates a specific optional payment form and a specific joint annuitant or Beneficiary, if applicable, with respect thereto (these designations cannot be changed without further consent of the Spouse). (b) The Spouse consents in writing to the election. (c) The Spouse's consent acknowledges the effect of the election. (d) The Spouse's consent is witnessed by a notary public or an authorized representative of the Plan. Consent of the Spouse will be deemed to have been obtained if it is established to the satisfaction of the Company that such consent cannot be obtained because the Spouse cannot be located or because of such other circumstances as may be prescribed by the Secretary of the Treasury. A consent by a Spouse will be effective only with respect to such Spouse, and cannot be revoked. 35 Page 36 18.3.4 Conditions Relating to Election of Options. A Participant will be provided with a written explanation of the terms and conditions of the life annuity or qualified joint and survivor annuity. The written explanation will include an explanation of the Participant's right to waive the life annuity or qualified joint and survivor annuity and the effect of such waiver, the Participant's right to have at least thirty (30) days to consider such waiver, the Participant's right to revoke a waiver and the effect of such revocation, and the rights of the Participant's Spouse with respect thereto. The waiver of a life annuity or qualified joint and survivor annuity and the election of an optional payment form must be made on such form and in accordance with such rules as may be prescribed for this purpose by the Company (including by means of voice response or other electronic system under circumstances authorized by the Company). The Participant must designate on such form the specific optional payment form and, if applicable, the specific joint annuitant or Beneficiary with respect thereto. The waiver and election may be revoked by the Participant prior to the pension commencement date or, if later, prior to the end of the seven (7) day period that begins the day after the written explanation is provided to the Participant. 18.3.5 Qualified Preretirement Survivor Annuity. If a Participant to whom this Section applies dies before commencement of the life annuity or qualified joint and survivor annuity, and if the Participant has a Spouse on the date of death, the Account balance of the Participant will be applied to purchase an annuity for the life of the Spouse unless the Spouse files a written election of some other form of payment after the Participant's death and prior to the due date of the first benefit payment to the Spouse. ARTICLE XIX MISCELLANEOUS PROVISIONS 19.1 Special Top-Heavy Rules. The following provisions apply in any Plan Year in which the Plan is top-heavy. 19.1.1 Minimum Contribution. If the Plan is top-heavy for a Plan Year, a minimum contribution will be made for such Plan Year on behalf of each Active Participant who is not a Key Employee and who is employed with the Company or an Affiliate on the last day of such Plan Year. The minimum contribution will equal that percentage of the Participant's compensation for the Plan Year which is the smaller of: (a) Three percent (3%). (b) The percentage which is the largest percentage of compensation allocated to any Key Employee from employer contributions for such Plan Year. The 401(k) Contributions made on behalf of non-key Employees will not be counted toward the minimum contribution required under this Section (however, such contributions made on behalf of Key Employees will be counted for purposes of determining the percentage in (b)). 36 Page 37 19.1.2 Definitions. The following terms have the following meanings in this Section: (a) "Compensation" means compensation as defined in Sec. 6.3.2, but disregarding any amounts in excess of the limit in effect under Code 401(a)(17). (b) "Determination Date" means the last day of the preceding Plan Year. (c) "Determination Period" means the Plan Year in which the applicable Determination Date occurs and the four preceding Plan Years. (d) "Key Employee" means any Employee or former Employee of the Company or an Affiliate who is defined as such under Code 416(i). (e) "Required Aggregation Group" means each qualified plan of the Company or an Affiliate in which at least one Key Employee participates in the Plan Year that contains the Determination Date or any of the four preceding Plan Years, and any other qualified plan of the Company or an Affiliate that enables such a Plan to meet the requirements of Code 401(a)(4) and 410. (f) "Permissive Aggregation Group" means the Required Aggregation Group plus any other qualified plan of the Company or an Affiliate which, when consolidated as a group with the Required Aggregation Group, would continue to satisfy the requirements of Code 401(a)(4) and 410. (g) "Present Value" for purposes of determining whether a defined benefit plan is Top-Heavy, will be calculated using the actuarial assumptions specified in the defined benefit plan for this purpose. (h) "Top-Heavy" means the condition of the Plan (or of all within the required aggregation group or permissive aggregation group) that would exist if, as of the Determination Date for the Plan Year, the Account balances plus the present value of the accrued benefits of the Key Employees exceeded sixty percent (60%) of the Account balances plus the present value of the accrued benefits of all Employees. For purposes of making this calculation: (1) The Account balances and the present value of accrued benefits will be determined as of the most recent Valuation Date that falls within the 12-month period ending on the Determination Date. (2) The Account balances and accrued benefits of a Participant who is not a Key Employee but who was a Key Employee in a prior year will be disregarded. (3) The Account balances of any Employees who has not been credited with at least one Hour of Service with the Company or an Affiliate at any time during the five (5)-year period ending on the Determination Date will be disregarded. 37 Page 38 (4) For purposes of determining if a defined benefit plan included in a Required Aggregation Group of which this Plan is a part is Top-Heavy, the accrued benefit to any Employee (other than a Key Employee) will be determined under the method that is used for accrual purposes under all defined benefit plans maintained by the Company or an Affiliate or, if there is no such method, as if such benefit accrued not more rapidly than the lowest accrual rate permitted under Code 411(b)(1)(C). (i) If an individual has not performed services for the employer at any time during the five-year period ending on the determination date with respect to a Plan Year, any Account balance or accrued benefit for such individual will not be taken into Account for such Plan Year. 19.1.3 Exception For Collective Bargaining Unit. The minimum contribution requirement described above will not apply to any Employee covered by the provisions of a collective bargaining agreement. 19.2 Qualified Military Service. The Plan will comply with the requirements of Code 414(u) with respect to each Participant who is absent from service because of "qualified military service" (as defined in Code 414(u)(5)) provided that he/she returns to employment within such period after the end of the qualified military service as is prescribed under Code 414(u) (or other federal law cited therein). Accordingly, any such Participant will be permitted to make additional 401(k) Contributions after his/her reemployment, will receive Matching Contributions on such 401(k) Contributions, and will receive service credit for the period of qualified military service as required under Code 414(u). 19.3 Insurance Company Not Responsible for Validity of Plan. Any insurance company that issues a contract under the Plan will not have any responsibility for the validity of the Plan. An insurance company to which an application may be submitted hereunder may accept such application and will have no duty to make any investigation or inquiry regarding the authority of the applicant to make such application or any amendment thereto or to inquire as to whether a person on whose life any contract is to be issued is entitled to such contract under the Plan. 19.4 No Guarantee of Employment. The Plan is not an employment agreement, and participation herein does not constitute a guarantee of employment with the Company or any Affiliate. 19.5 Use of Compounds of Word "Here". Use of the words "hereof", "herein", "hereunder", or similar compounds of the word "here" will mean and refer to the entire Plan unless the context clearly indicates to the contrary. 19.6 Construed as a Whole. The Plan is to be construed as a whole in such manner as to carry out its purpose and a given provision is not to be construed separately without relation to the context. 19.7 Headings. Headings at the beginning of Articles and Sections are for convenience of reference, are not considered a part of the text of the Plan, and will not influence its construction. 38 Page 39 ADDENDUM SPECIAL RULES FOR PLAN YEAR 2000 The ADM 401(k) Plan for Hourly Employees ("401(k) Plan") was established effective January 1, 2000, with 401(k) Contributions allowed starting August 1, 2000. Prior to August 1, 2000, Before- Tax Contributions were allowed under the ADM Employee Stock Ownership Plan ("ESOP") for Hourly Employees, and after that date, 401(k) Contributions are allowed under the 401(k) Plan. Certain transition rules will apply as a result of the adoption of the 401(k) Plan that are relevant only to the Plan Year beginning January 1, 2000, and ending December 31, 2000, and such rules are set forth in this Addendum. I TRANSFER OF DIVERSIFIED AMOUNTS The ESOP previously contained Subaccounts that were invested in investment funds other than Company Stock, including Predecessor Plan Accounts and Accounts that were diversified after age fifty- five (55) at the election of the Participant. Such Subaccounts will be transferred to the 401(k) Plan on or as soon as administratively practicable after August 1, 2000, to be established in a comparable Subaccount under the 401(k) Plan on behalf of the Participant. II CALCULATION OF MATCHING CONTRIBUTION The Matching Contribution under the ESOP for the Plan Year will be calculated based upon both Before-Tax Contributions made under the ESOP prior to August 1, 2000, and 401(k) Contributions made under the 401(k) Plan after August 1, 2000. III APPLICATION OF CERTAIN LIMITS AND TESTS II.2 Application of 402(g) Limit. The Before-Tax Contributions made under the ESOP prior to August 1, 2000, and 401(k) Contributions made under the 401(k) Plan after August 1, 2000 (together with elective deferrals under any other plan maintained by the Company or any Affiliate), will not exceed the limit in effect under Code 402(g) for the Plan Year. III.2 Application of 401(k)/401(m) Nondiscrimination Test. The average deferral percentage test of Code 401(k)(3) will be applied separately with respect to Before-Tax Contributions made under the ESOP prior to August 1, 2000, and 401(k) Contributions made under the 401(k) Plan, with each test applied based on compensation (using a definition under Code 414(s)) for the full Plan Year (but disregarding amounts paid prior to the date on which an Eligible Employee became an Active Participant or ceased to be an Active Participant). 39 Page 40 The aggregate contribution percentage test of Code 401(m) will be applied with respect to Matching Contributions made under the ESOP both prior to and after August 1, 2000. III.3 Correction to Comply with Code 415. If a Participant has Annual Additions in excess of the limits under Code 415; first, 401(k) Contributions (including investment gain) will be refunded to the Participant as provided in the 401(k) Plan; second, Before-Tax Contributions (including investment gain) will be refunded to the Participant; and finally the Matching Contributions will be forfeited as provided in the ESOP. 40 Page 41 ADM 401(K) AND EMPLOYEE STOCK OWNERSHIP PLANS FOR HOURLY EMPLOYEES APPENDIX A The participating location(s) hereunder and the coverage date of such location(s) are as specified on the List of Participating Locations for the Plans. The following sets forth the terms that apply to each participating location hereunder.
401(k) An Active Participant under this Contributions: Appendix may elect to reduce his/her current compensation for a payroll period by not more than fifteen percent (15%) in order to receive a 401(k) Contribution. Matching Schedule: An Active Participant under this Appendix will receive the following Matching Contributions: For 401(k) The Matching Contributions Contribution will representing the be the following following percent percent of the of Certified Participant's Earnings for 401(k) payroll periods Contributions for ending payroll periods within the Plan ending within the Year Plan Year The first 4% 100% The next 2% 50% Above 6% None
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