<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 10-K/A
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 1994, or
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________________ to _______________________
Commission file number 1-5277
BEMIS COMPANY, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Missouri 43-0178130
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
222 South 9th Street, Suite 2300
Minneapolis, Minnesota 55402-4099
- ---------------------------------------- -------------------
(Address of principal executive offices) (Zip Code)
(612) 376-3000
----------------------------------------------------
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
- ------------------- -------------------
Common Stock, par value $.10 per share New York Stock Exchange
Preferred Share Purchase Rights New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. Yes __X__ No _____
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of the Registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. /X/
The aggregate market value of the voting stock held by non-affiliates of
the Registrant on March 1, 1995, based on a closing price of $27.50 per share
and reported on the New York Stock Exchange was $1,272,508,000. As of March 1,
1995, the Registrant had 51,490,961 shares of Common Stock issued and
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
1994 Annual Report to Shareholders -- Part I and Part II
Proxy Statement -- Annual Meeting of Stockholders
May 4, 1995 -- Part III
<PAGE>
Item 10 of the Company's report on Form 10-K for the fiscal year ended
December 31, 1994, is hereby amended in its entirety as follows:
ITEM 10 -- DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information on directors is hereby incorporated by reference from the
Registrant's Proxy Statement for the Registrant's Annual Meeting of
Stockholders held on May 4, 1995, a definitive copy of which was filed with
the Commission on March 13, 1995. The required information is contained under
the heading "Information With Respect to Directors" on pages 3 through 5.
The following sets forth the name, age, and business experience for the
last five years of the principal executive officers of the Registrant. Each
officer has been an employee of the Registrant for the last five years and
the positions described relate to positions with the Registrant.
<TABLE>
<CAPTION>
PERIOD
THE POSITIONS
NAME AGE POSITIONS HELD WERE HELD
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LeRoy F. Bazany 62 Vice President and Controller 1982 to present
Jeffrey H. Curler 44 Executive Vice President 1991 to present
President-Curwood, Inc. (1) 1982 to present
Benjamin R. Field, III 56 Senior Vice President, Chief
Financial Officer and Treasurer 1992 to present
Vice President and Treasurer 1982 to 1992
Scott W. Johnson 54 Senior Vice President, General
Counsel and Secretary 1992 to present
Vice President -- General Counsel
and Secretary 1988 to 1992
Robert F. Mlnarik 53 Executive Vice President 1991 to present
President and Chief Executive
Officer-Morgan Adhesives Co. (2) 1986 to present
John H. Roe 55 President and Chief Executive Officer 1990 to present
President and Chief Operating Officer 1987 to 1990
Executive Vice President 1983 to 1987
Lawrence E. Schwanke 54 Vice President-Human Resources 1990 to present
Director, Personnel -- Industrial Relations 1985 to 1990
<FN>
(1) Curwood, Inc. is a 100 percent owned subsidiary of the Registrant.
(2) Morgan Adhesives Co. is 86.9 percent owned subsidiary of the Registrant.
</TABLE>
----------------------
Item 11 of the Company's report on Form 10-K for the fiscal year ended
December 31, 1994, is hereby amended in its entirety as follows:
-2-
<PAGE>
ITEM 11 -- EXECUTIVE COMPENSATION
The information required by this item is hereby incorporated by
reference from the Registrant's Proxy Statement for the Registrant's Annual
Meeting of Shareholders held on May 4, 1995, a definitive copy of which was
filed with the Commission on March 13, 1995. The required information is
contained under the headings "Compensation of Directors" on page 5,
"Executive Compensation" on page 6, "Stock Options granted in 1994" on page 7,
"Aggregate Year End Option Values" on page 7 and "Bemis Retirement Plan" on
page 10.
----------------------
Item 12 of the Company's report on Form 10-K for the fiscal year ended
December 31, 1994 is hereby amended in its entirety as follows:
ITEM 12 -- SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item is hereby incorporated by
reference from the Registrant's Proxy Statement for the Registrant's Annual
Meeting of Shareholders held on May 4, 1995, a definitive copy of which was
filed with the Commission on March 13, 1995. The required information is
contained under the heading "Ownership of the Company's Securities" on pages 2
and 3.
----------------------
Item 13 of the Company's report on Form 10-K for the fiscal year ended
December 31, 1994, is hereby amended in its entirety as follows:
ITEM 13 -- CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is hereby incorporated by
reference from the Registrant's Proxy Statement for the Registrant's Annual
meeting of Shareholders held on May 4, 1995, a definitive copy of which was
filed with the Commission on March 13, 1995. The required information is
contained under the heading "Certain Relationships and Certain Transactions"
on pages 11 and 12.
----------------------
Item 14(a)(3) of the Company's report on Form 10-K for the fiscal year
ended December 31, 1994 is hereby amended in its entirety as follows:
ITEM 14 -- EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this report:
(3) Exhibits
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
-------- -----------
<S> <C>
3(a) Articles of Incorporation of the Registrant as amended.(1)
3(b) By-Laws of the Registrant, as amended.
4 Rights Agreement, dated as of August 3, 1989, between Bemis
Company, Inc. and Norwest Bank Minnesota, National Association.(2)
10(a) Bemis Company, Inc. 1987 Stock Option Plan.*(1)
</TABLE>
-3-
<PAGE>
<TABLE>
<S> <C>
10(b) Bemis Company, Inc. 1994 Stock Incentive Plan.*(3)
10(c) Bemis Company, Inc. 1984 Stock Award Plan.*
10(d) Bemis Retirement Plan, as amended effective January 1, 1994.*
10(e) Bemis Company, Inc. Supplemental Retirement Plan dated
October 20, 1988.*
10(f) Bemis Executive Incentive Plan dated April 1, 1990.*
10(g) Bemis Company, Inc. Long Term Deferred Compensation Plan.*
10(h) Amended and Restated Credit Agreement among Bemis Company, Inc.,
the Banks Listed therein and Morgan Guaranty Trust Company of
New York, as Agent, originally dated as of August 1, 1986,
Amended and Restated as of August 1, 1991, as amended by
Amendment No. 1 dated as of May 1, 1992, as amended by Amendment
No. 2 dated December 1, 1992, as amended by Amendment No. 3
dated January 22, 1993, as amended by Amendment No. 4 dated
March 15, 1994, as amended by Amendment No. 5 dated June 1, 1994,
and as amended by Amendment No. 6 dated February 1, 1995.
13 1994 Annual Report to Shareholders.**
22 Subsidiaries of the Registrant.**
23 Consent of Price Waterhouse LLP.
24 Powers of Attorney.
27 Financial Data Schedule (EDGAR electronic filing only).**
<FN>
- ----------
* Management contract, compensatory plan or arrangement filed pursuant to
Rule 601(b)(10)(iii)(A) of Regulation S-K under the Securities Exchange Act of 1934.
** Filed with the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994.
(1) Incorporated by reference to the Registrant's Registration Statement on Form S-8
(File No. 33-50560).
(2) Incorporated by reference to the Registrant's Registration Statement on Form 8-A
dated August 1, 1989 (File No. 0-1387).
(3) Incorporated by reference to the Registrant's Registration Statement on Form S-8
(File No. 33-80666).
</TABLE>
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Minneapolis, State of Minnesota, on June 27, 1995.
BEMIS COMPANY, INC.
/s/ Scott W. Johnson
------------------------------------------
Scott W. Johnson
Senior Vice President, Secretary and
General Counsel
Pursuant to the requirements of the Securities Act of 1934, this report
has been signed by the following persons in the capacities indicated on
June 27, 1995.
/s/ John H. Roe , President and Chief Executive Officer
--------------------------- (Principal Executive Officer)
John H. Roe
/s/ Benjamin R. Field III , Senior Vice President, Chief Financial
--------------------------- Officer and Treasurer (Principal
Benjamin R. Field III Financial Officer)
/s/ LeRoy F. Bazany , Vice President and Controller
--------------------------- (Principal Accounting Officer)
LeRoy F. Bazany
Winslow H. Buxton*, Director
Howard J. Curler*, Director
Jeffrey H. Curler*, Director
Loring W. Knoblauch*, Director
Edwin S. McBridge*, Director
Robert F. Mlnaraik*, Director
Winston R. Wallin*, Director
C. Angus Wurtele*, Director
* Scott W. Johnson, by signing his name hereto, does hereby sign this
document on behalf of each of the above named officers and directors of the
Registrant pursuant to powers of attorney duly executed by such persons.
/s/ Scott W. Johnson
------------------------------------------
Scott W. Johnson
Attorney-in-Fact
-5-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
FORM OF
EXHIBIT DESCRIPTION FILING
-------- ----------- ------------
<S> <C> <C>
3(a) Articles of Incorporation of the Registrant, as amended.(1)
3(b) By-Laws of the Registrant, as amended. Electronic
Transmission
4 Rights Agreement, dated as of August 3, 1989, between Bemis
Company, Inc. and Norwest Bank Minnesota, National Association.(2)
10(a) Bemis Company, Inc. 1987 Stock Option Plan.(1)
10(b) Bemis Company, Inc. 1994 Stock Incentive Plan.(3)
10(c) Bemis Company, Inc. 1984 Stock Award Plan. Electronic
Transmission
10(d) Bemis Retirement Plan, as amended effective January 1, 1994. Electronic
Transmission
10(e) Bemis Company, Inc. Supplemental Retirement Plan dated Electronic
October 20, 1988. Transmission
10(f) Bemis Executive Incentive Plan dated April 1, 1990. Electronic
Transmission
10(g) Bemis Company, Inc. Long Term Deferred Compensation Plan. Electronic
Transmission
10(h) Amended and Restated Credit Agreement among Bemis Company, Inc., Electronic
the Banks Listed therein and Morgan Guaranty Trust Company of Transmission
New York, as Agent, originally dated as of August 1, 1986,
Amended and Restated as of August 1, 1991, as amended by
Amendment No. 1 dated as of May 1, 1992, as amended by Amendment
No. 2 dated December 1, 1992, as amended by Amendment No. 3
dated January 22, 1993, as amended by Amendment No. 4 dated
March 15, 1994, as amended by Amendment No. 5 dated June 1, 1994,
and as amended by Amendment No. 6 dated February 1, 1995.
13 1994 Annual Report to Shareholders.*
22 Subsidiaries of the Registrant.*
23 Consent of Price Waterhouse LLP. Electronic
Transmission
24 Powers of Attorney. Electronic
Transmission
27 Financial Data Schedule (EDGAR electronic filing only).* Electronic
Transmission
<FN>
- ----------
* Filed with the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
(1) Incorporated by reference to the Registrant's Registration Statement on Form S-8
(File No. 33-50560).
(2) Incorporated by reference to the Registrant's Registration Statement on Form 8-A
dated August 4, 1989 (File No. 0-1387).
(3) Incorporated by reference to the Registrant's Registration Statement on Form S-8
(File No. 33-80666).
</TABLE>
2
<PAGE>
EFFECTIVE 7/7/92
BY-LAWS
OF
BEMIS COMPANY, INC.
ARTICLE l-- MEETINGS OF STOCKHOLDERS
1. PLACE OF MEETINGS
Meetings of stockholders shall be held at the principal office of the
Company in Minneapolis, Minnesota, or at such place within or without the
State of Missouri as the Board of Directors shall authorize.
2. ANNUAL MEETING
The Annual Meeting of the stockholders of this Company for the election of
Directors and to transact such other business as may properly come before
the meeting, shall be held in the principal office of the Company in
Minneapolis, Minnesota at 10:00 A. M. on the first Thursday in May of each
year, or at such time and place between May 1 and May 15 as may be selected
by the Board of Directors. No adjournment of said meeting for the election
of Directors shall be had for more than sixty days thereafter.
3. SPECIAL MEETINGS
Special meetings of the stockholders may be called by resolution of the
Board of Directors or by the holders of not less than a majority of all the
outstanding voting stock of the Company.
4. NOTICE OF MEETING
Notice of meeting, written or printed, for every regular or special meeting
of stockholders, setting forth the purpose or purposes of the meeting,
shall be mailed to the last known address of each stockholder not less than
two weeks before any such meeting.
5. QUORUM
A quorum at any meeting of the stockholders shall consist of a majority of
the shares entitled to vote represented in person or by proxy.
<PAGE>
6. ELECTION OF DIRECTORS
The election of Directors shall be held at the Annual Meeting of
stockholders and shall be conducted by two inspectors of election.
7. VOTE
Except as otherwise required by statute or by the Articles of Incorporation
a vote by ballot of the majority of the shares entitled to vote and
represented at the meeting shall be necessary to elect directors or to
decide any question that may properly come before the meeting. Each
stockholder of record shall be entitled to cast one vote for each share of
stock held by him under the cumulative system.
8. INSPECTORS OF ELECTION
The officer presiding at the stockholders' meeting shall appoint two
suitable persons to act as inspectors of election, to receive and canvass
the votes cast, and to certify the result thereof to the presiding officer.
Upon the failure of the presiding officer to so appoint said inspectors of
election, the stockholders present at any such meeting shall select said
inspectors. The inspectors so selected shall, before entering upon the
discharge of their duties as such, take the oath required by statute in
such case made and provided.
9. STOCK LEDGER
The officer having charge of the stock ledger of the Company shall make or
cause to be made, at least ten days before each meeting of stockholders, a
complete list of stockholders entitled to vote at such meeting, arranged in
alphabetical order with the address and number of shares held by each.
Such list shall be produced at the meeting and shall be subject to
inspection by any stockholder during the entire meeting.
10. ORDER OF BUSINESS
The order of business at the Annual Meeting, and, as far as possible, at
all other meetings of the stockholders, shall be:
1. Calling of roll.
2. Proof of due notice of meeting.
3. Reading and disposal of any unapproved minutes.
4. Annual report of Officers and Committees.
5. Election of Directors.
6. Unfinished business.
7. New business.
8. Adjournment.
2
<PAGE>
ARTICLE II-- DIRECTORS
1. BOARD OF DIRECTORS
The business and property of the Company shall be managed by a Board of
Directors of not less than seven (7) nor more than fifteen (15) persons.
The full Board of Directors on the date of adoption of this provision of
the Company's By-Laws shall be eleven (11) persons, but the number may be
changed from time to time by a resolution adopted by a majority of the
entire Board of Directors. Any change in the number of directors shall be
reported to the Missouri Secretary of State within thirty calendar days of
such change. Directors who are in the employ of the Company shall receive
no additional compensation for their services as directors.
2. ELECTION
The Directors shall be divided into three classes: the term of one class
shall expire at the 1983 Annual Meeting of the stockholders of the Company;
the term of a second class shall expire at the 1984 Annual Meeting of
stockholders of the Company; and the term of a third class shall expire at
the 1985 Annual Meeting of stockholders of the Company; and at each Annual
Meeting of stockholders of the Company, commencing with the meeting in
1983, successors to the class of Directors whose term shall then expire
shall be elected to hold office for a term of three years. The Directors
of each class shall hold office for the term for which elected and shall
serve until their successors have been duly elected and qualified. Each
class shall be approximately equal as the Board of Directors may determine.
Newly created directorships and vacancies occurring for any reason may be
filled by a vote of a majority of Directors then in office although less
than a quorum. A Director elected to fill a newly created directorship or
other vacancy shall hold office until expiration of the term of the
particular class and until his or her successor has been duly elected and
qualified.
3. MEETINGS
a. ANNUAL. There shall be an Annual Meeting of the Board of Directors
for the election of officers within two weeks after the Annual Meeting
of stockholders, or adjournment thereof, at which time said Directors
were elected. Said meeting may be held within or without the State of
Missouri and shall be called by the Chairman, Vice-Chairman, or
President, or upon their failure to call said meeting, then by any two
directors, provided at least five days notice of such meeting has been
given to the other Directors.
b. SPECIAL. Special meetings may be called by the Chairman,
Vice-Chairman, or President, or any two Directors and may be held any
time, within or without the State of Missouri, provided at least three
days notice of such meetings has been given to the other Directors.
3
<PAGE>
4. BOARD ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if all members of the Board
consent thereto in writing.
5. QUORUM
A quorum at any meeting shall consist of a majority of the entire
membership of the Board of Directors. A majority of said quorum shall
decide any question that may come before a meeting with the following
exceptions:
a. The election of officers of the Company and the appointment of
committees shall require a majority vote of the entire Board;
b. The filling of vacancies in the Board shall require the majority
specified in Section 2 of this Article Il;
c. A change in the number of Directors shall require a majority vote of
the entire Board.
6. ELECTION OF OFFICERS
The President, three or more Vice-Presidents, Secretary, Treasurer, and
Controller, shall be elected by the Board of Directors at its Annual
Meeting each year. If any of the offices, above mentioned, become vacant
during the year, the Board of Directors shall fill the same for the
unexpired term. Any other office authorized by Article III, Section 1, may
also at the discretion of the Board, be filled either at its Annual Meeting
or at any other time when there is a vacancy. The Chairman and
Vice-Chairman, if elected, and the President must be members of the Board.
7. ORDER OF BUSINESS
The order of business at any regular or special meeting of the Board of
Directors shall be:
1. Reading and disposal of any unapproved minutes.
2. Reports of Officers and Committees.
3. Unfinished business.
4. New business.
5. Adjournment.
4
<PAGE>
ARTICLE III-- OFFICERS
1. OFFICERS
The Officers of the Company shall be a President, three or more
Vice-Presidents, one or more of whom may be Executive Vice-Presidents, or
senior Vice-Presidents; a Secretary, a Treasurer, and a Controller. In
addition, a Chairman, Vice-Chairman, and a Chairman of the Executive
Committee may be elected by the Board and when so elected, shall be
officers of the Company. All of the above officers shall be elected for
one year and hold office until their successors are elected and quality.
The Board of Directors may designate one of the officers thus elected as
Chief Executive Officer, who shall have overall direction of the affairs of
the Company; a Chief Administrative Officer, who shall have general
direction of the administration of the business affairs of the Company; and
a Chief Operating Officer, who shall have general direction of the
operations of the Company. If elected, such officers shall have such
duties and responsibilities as the Board may from time to time prescribe.
The Board may increase the number of officers from time to time as it may
in its discretion direct by electing not to exceed nine additional
Vice-Presidents, one Assistant Treasurer, two Assistant Secretaries, and
two Assistant Controllers in addition to the officers authorized above,
these officers to hold office until the next Annual Meeting of the Board.
The Board shall have the right and authority at any time to remove, for
cause or without cause, any officers created by virtue of this paragraph,
and may, at its discretion, fill or not fill such vacancy. Every officer
must be a stockholder.
2. CHAIRMAN
The Chairman shall preside at all meetings of the stockholders or Board of
Directors except as otherwise provided by statute. He shall perform such
other duties as the Board may prescribe.
3. VICE-CHAIRMAN
In the absence of the Chairman, the Vice-Chairman shall preside at meetings
of the stockholders or Board of Directors.
4. CHAIRMAN OF EXECUTIVE COMMITTEE
The Chairman of the Executive Committee shall preside at all meetings of
the Executive Committee and shall perform such other duties as the Board of
Directors may prescribe.
5
<PAGE>
5. PRESIDENT
In the absence of the Chairman and Vice-Chairman, the President shall
preside at all meetings of the stockholders and Board of Directors. He
shall sign all certificates of stock and perform such other duties as the
Chairman and the Board may prescribe.
6. CHIEF EXECUTIVE OFFICER
The Chief Executive Officer, who shall be either the Chairman or the
President, shall have overall supervision of the affairs of the Company,
and perform all such other duties as are incident to his office, or are
properly required of him by the Board.
In the absence, incapacity or death of the Chairman when he is also Chief
Executive Officer, the President shall be Chief Executive Officer. In the
absence of both the Chairman and the President, the Vice-Chairman shall be
Chief Executive Officer. In the absence of all three officers (Chairman,
Vice-Chairman and President), the Chairman of the Executive Committee shall
be the Chief Executive Officer.
7. VICE-PRESIDENTS
The Vice-Presidents shall perform such duties as the Board of Directors or
the Chief Executive Officer shall prescribe. In the absence of the Chief
Executive Officer, the Vice-Presidents shall perform their duties in the
order named at the annual election of Officers. The Vice-Presidents shall
perform the duties of other Vice-Presidents in their absence, incapacity,
or death and in assuming such duties, authority shall vest in the
Vice-Presidents in the order named in the resolution covering their
election. When one of the Vice-Presidents is an Executive Vice-President
or a Senior Vice-President, his special duties shall be to have charge of
such principal part or function of the business of the Company as may be
prescribed by the Board of Directors or the Chief Executive Officer.
8. SECRETARY
The Secretary shall issue notices for all stockholder and director
meetings, shall keep their minutes, shall have charge of the seal and
corporate books, shall sign, with the President, all certificates of stock
and such other formal instruments as require such signature, and shall make
such reports and perform such other duties as are incident to his office,
or are properly required by him by the Board of Directors, or the Chief
Executive Officer.
9. ASSISTANT SECRETARIES
The Assistant Secretaries shall perform the duties of the Secretary in the
latter's absence, incapacity or death. They shall perform such other
duties as may be
8
<PAGE>
properly required of them by the Board of Directors or the Chief Executive
Officer.
10. TREASURER
The Treasurer shall have general supervision over, and charge of all moneys
and securities of the Company, and shall arrange for the financing of the
Company's operations. He shall sign or countersign such instruments as
require his signature, shall perform all duties incident to his office or
that are properly required of him by the Board of Directors, or the Chief
Executive Officer.
11. ASSISTANT TREASURER
The Assistant Treasurer shall perform such portion of the Treasurer's
duties as the latter may direct, and shall assume the entire duties of the
Treasurer in his absence, incapacity or death. He shall perform such other
duties as may be properly required of him by the Board of Directors, or the
Chief Executive Officer.
12. CONTROLLER
The Controller shall keep a financial record of the business of the
Company, developing and maintaining an accounting system to accomplish the
proper recording, measuring and reporting of all financial operations and
transactions and all assets and liabilities of the Company. He shall make
periodic financial reports to the Directors and Officers and shall perform
such other duties as may be properly required of him the Board of
Directors, or the Chief Executive Officer.
13. ASSISTANT CONTROLLER
The Assistant Controller shall perform such portion of the Controller's
duties as the latter may direct and shall assume the entire duties of the
Controller in his absence, incapacity or death. They shall perform such
other duties as may be properly required of them by the Board of Directors,
or the Chief Executive Officer.
ARTICLE IV -- CAPITAL STOCK
1. CERTIFICATE OF STOCK
Certificates of stock shall be issued to each holder of fully paid stock.
The certificates shall be signed by the President or a Vice-President and
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer and sealed with the corporate seal. Such seal may be facsimile,
engraved or printed. Where any such certificate is signed by a transfer
agent or transfer clerk or by a registrar, the signatures of any such
President, Vice-President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer upon such
7
<PAGE>
certificate may be facsimiles, engraved or printed. In case any such
officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before such
certificate is issued, such certificate may nevertheless be issued by the
Company with the same effect as if such officer had not ceased to be such
officer at the date of its issue.
2. TRANSFER OF STOCK
Transfers of stock on the books of the Company may be authorized only by
the stockholder named in the certificate, or the stockholder's legal
representative, or the stockholder's duly authorized attorney-in-fact, upon
the surrender of the certificates for such stock. The Company may treat as
the absolute owner of the stock of the Company the person or persons in
whose name the stock is registered on the books of the Company.
3. LOST OR DESTROYED CERTIFICATES
The President and any Vice-President of the Company may order a new
certificate of stock to be issued in the place of any certificate claimed
to have been lost or destroyed, but in every such case the owner of the
lost or destroyed certificate shall make an affidavit or affirmation of the
fact of such loss or destruction in form satisfactory to the President and
such Vice-President and shall give to the Company a bond of indemnity in
form and in amount and with one or more sureties satisfactory to the
President and such Vice-President to indemnify the Company against any loss
or claim that the Company may incur by reason of the issuance of such stock
certificate. Said officers may, in their discretion, refuse to replace any
lost or destroyed certificate save upon the order of a court having
appropriate jurisdiction.
4. RECORD DATE
The Board of Directors is authorized to fix in advance a date, not
exceeding fifty days preceding the date of any meeting of or the date for
the payment of any dividend, or the date for the allotment of rights, or
the date when any change or conversion or exchange of stock shall go into
effect, as the record date for the determination of the stockholders
entitled to notice of, and to vote at any such meeting, and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any
such allotment of rights or to exercise the rights to respect to any such
change, conversion or exchange of stock in the manner and with the effect
provided in statutes of the State of Missouri. If the Board shall not have
closed the transfer books or set a record date for the determination of its
stockholders entitled to vote or entitled to such other right, then the
date on which notice of the meeting is mailed or the date such dividend is
declared or other right announced, as the case may be, shall be the record
date for such determination of stockholders entitled to vote or to such
other right.
8
<PAGE>
5. TREASURY STOCK
The Treasury Stock of the Company shall consist of such issued and
outstanding stock of the Company as may be donated to the Company or
otherwise acquired, and shall be held subject to disposal by the Board of
Directors. Such stock shall neither vote nor participate in dividends
while held by the Company.
ARTICLE V -- INDEMNIFICATION OF DIRECTORS,
OFFICERS AND EMPLOYEES
1. The Company shall indemnify each person, and his legal representatives, who
is or was a Director, Officer or employee of the Company or its
subsidiaries against any and all liability and reasonable expense that may
be incurred by him in connection with or resulting from any claim, suit, or
proceedings, in which he may become involved, as a party or otherwise, by
reason of his being or having been a Director, Officer or employee of the
Company or its subsidiaries or by reason of any past or future action taken
or not taken in his capacity as such Director, Officer or employee, whether
or not he continues to be such at the time such liability or expense is
incurred, provided that such person acted in good faith and in a manner he
reasonably believed to be in the best interests of the Company or its
subsidiaries, and, in addition, in any criminal action or proceedings, had
no reasonable cause to believe that his conduct was unlawful.
Notwithstanding the foregoing, there shall be no indemnification (1) as to
amounts paid or payable to the Company or its subsidiaries, for or based
upon the Director, Officer or employee having gained in fact any personal
profit or advantage to which he was not legally entitled, (2) as to amounts
paid or payable to the Company for an accounting of profits in fact made
from the purchase or sale of securities of the Company within the meaning
of Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any state statutory law, or (3) with
respect to matters as to which indemnification would be in contravention of
applicable state law or the laws of the United States of America, whether
as a matter of public policy or pursuant to statutory provisions.
2. Any such Director, Officer or employee who has been wholly successful, on
the merits or otherwise, with respect to any claim, suit, or proceeding of
the character described herein shall be entitled to indemnification as of
right, except to the extent he has otherwise been indemnified. Except as
provided in the preceding sentence, any indemnification hereunder shall be
granted by the Company, but only if (a) the Board of Directors, acting by a
quorum consisting of Directors who are not parties to or have been wholly
successful with respect to such claim, suit or proceeding, shall find that
the Director, Officer or employee has met the applicable standards of
conduct set forth in paragraph 1 of this Article V, or (b) legal counsel
engaged by the Company shall deliver to the Company its written opinion
that such Director, Officer or employee has met such applicable standards
of conduct, or (c) a court of competent jurisdiction has
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determined that such Director, Officer or employee has met such standards,
in an action brought either by the Company or by the Director, Officer or
employee seeking indemnification, applying de novo such applicable
standards of conduct. The termination of any claim, suit, or proceeding,
civil or criminal, by judgment, settlement (whether with or without court
approval) or conviction or upon a plea of guilty or of nolo contenders, or
its equivalent, shall not create a presumption that a Director, Officer or
employee did not meet the applicable standards of conduct set forth in
paragraph 1 of this Article V.
3. As used in this Article V, the term "liability" shall mean amounts paid in
settlement or in satisfaction of judgments or fines or penalties, and in
the term "expense" shall include, but shall not be limited to, attorney's
fees and disbursements, incurred in connection with the claim, suit or
proceeding. The Company may advance expenses to, or where appropriate may
at its option and expense undertake the defense of, any such Director,
Officer or employee upon receipt of an undertaking by or on behalf of such
person to repay such expenses if it should ultimately be determined that
the person is not entitled to indemnification under this Article v.
4. The provisions of this Article V shall be applicable to claims, suits or
proceedings made or commenced after the adoption hereof, whether arising
from acts or omissions to act occurring before or after the adoption
hereof. If several claims, issues, or matters of action are involved, any
such Director, Officer or employee may be entitled to indemnification as to
some matters even though he is not so entitled as to others. The rights of
indemnification provided hereunder shall be in addition to any rights to
which any Director, Officer or employee concerned may otherwise be entitled
by contract or as a matter of law, and shall inure to the benefit of the
heirs, executors and administrators of any such Director, Officer or
employee.
ARTICLE VI -- DIVIDENDS AND FINANCE
1. DIVIDENDS
Dividends shall be declared only from the surplus or profits at such time
as the Board of Directors shall direct, and no dividend shall be declared
that will impair the capital of the Company.
2. MONEYS
The moneys of the Company shall be deposited in such banks or trust
companies as the Board of Directors, the Chief Executive Officer or the
Treasurer shall designate. Only a designated agent of the Company for whom
power of attorney has been issued by the Company Controller and Secretary
is authorized and empowered to endorse checks and drafts and to draw and
sign checks against funds of the Company.
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3. NOTES AND OTHER SIMILAR OBLIGATIONS
Any one of the officers of the Company, as defined in Article III, Section
1, is authorized and empowered to: endorse certificates of stock and notes
held by the Company; negotiate and sign on behalf of the Company promissory
notes, bills of exchange, letters of credit, and other similar obligations.
ARTICLE VII -- SEAL
1. CORPORATE SEAL
The Corporate Seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Missouri." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII -- AMENDMENTS
1. The Board of Directors of the Company is authorized to make, alter, amend
or repeal by-laws of the Company, not inconsistent with the Articles of
Incorporation of the Company or with the laws of the State of Missouri, for
the administration and regulation of the affairs of the Company. By-Laws
made by the Board of Directors may be altered or repealed, in whole or in
part, by a majority of the entire outstanding stock of the Company, at any
regular or special meeting of the stockholders where such action has been
announced in the call and notice of the meeting.
ARTICLE IX -- COMMITTEES
1. The Board of Directors may by resolution establish such committees as it
deems necessary or appropriate to perform such functions delegated by the
Board. Such committees shall have and exercise the powers,
responsibilities and duties set forth in the resolutions establishing them.
The Board shall have the power to fill vacancies and to change the size and
membership of all committees. A majority of the members of a committee
shall constitute a quorum thereof and may fix the time and place of the
committee meetings.
ARTICLE X -- RETIREMENT OF DIRECTORS
1. Members of the Board of Directors who are management shall retire from the
Board on the same date that the Director retires from Company management.
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2. Nonmanagement Directors shall retire from the Board when they reach age
seventy.
3. Nonmanagement Directors who are members of the Board of Directors as of
year-end 1981 may be retained for five years beyond this date regardless of
age.
4. The Board of Directors is authorized to retain any retiring Directors as a
compensated consultant but such retiring Director shall have no vote in the
official decisions of the Board.
5. Anything contained herein to the contrary notwithstanding, a Director
(management and nonmanagement) shall not be required to retire from the
Board until the expiration of his or her term as a Director during which
normal retirement would have otherwise occurred.
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1984 BEMIS
STOCK AWARD PLAN
SECTION 1. ESTABLISHMENT, PURPOSE, AND EFFECTIVE DATE OF PLAN
1.1 ESTABLISHMENT. BEMIS COMPANY, INC. hereby establishes a stock
incentive plan for key Employees, as described herein, which shall be known as
the 1984 Bemis "Stock Award Plan" (hereinafter called the "Plan").
1.2 PURPOSE. The purpose of the Plan is to enable the Company and its
Subsidiaries to attract, retain, and motivate key Employees who provide valuable
service, and to provide such Employees with a means of acquiring or increasing a
proprietary interest in the Company so that they will have an increased
incentive to work for the long-term success of the Company and its Subsidiaries.
1.3 SHAREHOLDERS' APPROVAL. The Plan shall become effective as of
October 16, 1984, subject to approval by the shareholders of the Company.
SECTION 2. DEFINITIONS
2.1 DEFINITIONS. Whenever used herein, the following terms shall have
the meanings set forth below:
(a) "Beneficiary" means the person or persons designated as such
under Sec. 9.1.
(b) "Board" means the Board of Directors of the Company.
(c) "Committee" means the Committee referred to in Sec. 4.1 which is
responsible for administration of the Plan.
(d) "Company" means Bemis Company, Inc., a Missouri corporation.
(e) "Employee" means any key executive in charge of a principal
division, business unit, or department of the Company or a
Subsidiary, and any other employee who performs similar
managerial and professional functions for the Company or a
Subsidiary.
(f) "Fair Market Value" means the last sale price of the Stock as
reported by the New York Stock Exchange on a particular date.
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(g) "Grantee" means an Employee who receives a Target Award under the
Plan.
(h) "Period of Restriction" means the period determined under Sec.
7.4.
(i) "Stock" means the common stock, par value of ten cents ($0.10)
per share, of the Company.
(j) "Subsidiary" means any corporation, 50% or more of the voting
stock of which is directly or indirectly owned by the Company.
(k) A "Target Award" is an amount awarded to a Grantee under Sec.
7.1.
2.2 GENDER AND NUMBER. Except when otherwise indicated by the context,
words in the masculine gender when used in this Plan shall also include the
feminine gender, the singular shall include the plural, and the plural shall
include the singular.
SECTION 3. ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBLE EMPLOYEES. Grantees shall be limited to key Employees who,
by means of their positions, functions, or responsibility levels have a direct
and significant impact on their employer's earnings or profitable performance,
as recommended by the Company's Chief Executive Officer and approved by the
Committee.
SECTION 4. ADMINISTRATION
4.1 ADMINISTRATION OF PLAN. The Plan shall be administered by a
committee of three or more persons appointed by the Board from among those
members of the Board who are not employees of the Company or any of its
Subsidiaries. A majority of the members of the Committee shall constitute a
quorum for any meeting of the Committee, and the acts of a majority of the
members present at any meeting at which a quorum is present or the acts
unanimously approved in writing by all members of the Committee shall be the
acts of the Committee. Subject to the provisions of the Plan, the Committee may
from time to time adopt such rules for the administration of the Plan as it
deems appropriate. The decision of the Committee on any matter affecting the
Plan or the rights and obligations arising under the Plan shall be final and
binding upon all persons. No member of the Committee shall be liable for any
action or determination taken or made in good faith with respect to the Plan.
SECTION 5. STOCK SUBJECT TO THE PLAN
5.1 NUMBER. The total number of shares of Stock that may be issued under
the Plan may not exceed 600,000, subject to adjustment as provided in Sec. 5.2.
Those shares may consist, in whole or in part, of authorized but unissued Stock
or shares of Stock
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reacquired by the Company, including shares purchased in the open market, not
reserved for any other purpose. However, to the extent shares of Stock were
available on October 16, 1984 for future grants of options under the Company's
1978 Nonqualified Stock Option Plan, and grants of options under said plan after
said date result in issuance of shares of Stock, the number of shares of Stock
that may be issued under this Plan will be reduced.
5.2 ADJUSTMENTS IN CAPITALIZATION. In the event of any change in the
outstanding shares of Stock by reason of a stock dividend, stock split, reverse
split, recapitalization, merger, consolidation, combination, or exchange of
shares or other similar corporate change, the aggregate number of shares of
Stock issuable under this Plan shall be appropriately adjusted by the Committee,
whose determination shall be conclusive. In such event the Committee shall also
have discretion to make appropriate adjustments in the number and type of shares
subject to Target Award grants then outstanding under the Plan.
5.3 ADDITIONAL SHARES AUTHORIZED IN 1987. In addition to the shares of
Stock authorized under Sec. 5.1, an additional 600,000 shares of Stock may be
issued under the Plan pursuant to this Sec. 5.3. Said number of additional
shares is subject to adjustment as provided in Sec. 5.2. Said shares may
consist, in whole or in part, of authorized but unissued Stock or shares of
Stock reacquired by the Company, including shares purchased in the open market,
not reserved for any other purpose. However, the number of shares that may be
issued under the Plan by reason of this Sec. 5.3 shall be reduced by the number
of shares with respect to which options are granted under the Company's 1987
Stock Option Plan; provided, however, that the number of shares covered by an
option which expires unexercised will not be included in said offset.
SECTION 6. DURATION OF THE PLAN
6.1 DURATION OF THE PLAN. No Target Awards may be made under the Plan
after October 15, 1994.
SECTION 7. AWARDS
7.1 INITIAL DETERMINATION OF AWARDS. A Grantee's "Target Award" is the
starting point in determining the number of shares of Stock he will receive
under the Plan. The Target Award for a particular Grantee may be granted by the
Committee at any time prior to October 16, 1994. Multiple Target Awards may be
granted with respect to any Grantee. Each Target Award will be expressed in
terms of a number of shares of Stock. Granting of a Target Award does not
involve immediate issuance of shares of Stock to the Grantee; shares of Stock
will be issued only to the extent provided in Sec. 7.3 below. The Company will
advise the Grantee promptly of any Target Award granted to him.
7.2 DIVIDENDS. The Company will make a cash payment to each Grantee who
has a Target Award outstanding in an amount equal to the cash dividend he would
have received
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if he had held shares of Stock equal to the number of shares represented by the
Target Award. These payments will be made on or about the date dividends are
paid to shareholders of the Company. If there is a stock dividend, stock split,
reverse split or the like, the number of shares represented by each outstanding
Target Award will be adjusted as provided in Sec. 5.2.
7.3 PAYMENT OF AWARDS. If the Grantee is employed by the Company or an
Affiliate at the end of the Period of Restriction, the Company will issue to him
a number of shares of Stock equal to the number of shares of Stock represented
by the Target Award. If the Grantee's termination of employment occurs prior to
the end of the Period of Restriction, the Company will issue to him the number
of shares, if any, determined from whichever of the following subsections is
applicable:
(a) If his termination of employment was due to his death, the
Company will transfer to his Beneficiary the number of shares of
Stock represented by any Target Awards with respect to the
Participant outstanding on the date of his death.
(b) If his termination of employment occurs due to his permanent and
total disability or he is absent from work and qualifies either
for a benefit under the Company's long term disability program or
for a social security disability benefit, the Company will
transfer to him the number of shares of Stock represented by any
Target Awards then outstanding with respect to him.
(c) If his termination of employment occurs under circumstances that
there is an early retirement or normal retirement under the Bemis
Retirement Plan, the Company will transfer to him a portion of
the number of shares of Stock represented by each Target Award
then outstanding with respect to him, said portion to be
determined by multiplying (1) times (2):
(1) The number of shares of Stock represented by the Target
Award.
(2) A fraction, (i) the numerator of which is the number of full
months which have elapsed from the date the Target Award was
granted until the date of termination of employment, and
(ii) the denominator of which is the maximum number of full
months during the Period of Restriction, said maximum number
to be determined as of the date the Target Award was
granted.
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The remaining shares of Stock will be forfeited and retained by
the Company. However, the Committee may in its sole discretion
provide for issuance to the Grantee of all or any portion of the
remaining shares represented by the Target Award. The
Committee's decision as to whether to distribute such additional
shares of Stock to a particular Grantee and as to the number of
shares will not be binding or precedential with regard to
subsequent terminations by other Grantees.
(d) If his termination of employment occurs under circumstances other
than any of those described in (a), (b), and (c) above, and is
involuntary (including any resignation at the request of the
Company) and not for cause, he shall receive from the Company
shares of Stock reflecting a portion of his Target Award
determined by the Committee in its sole discretion. The
Committee's decision as to the number of shares to distribute
following a particular Grantee's termination of employment will
not be binding or precedential with regard to subsequent
terminations by other Grantees. The remainder of the Target
Award will be forfeited and retained by the Company. The
Committee may in its sole discretion determine that no shares
will be distributed to a particular Participant under this
paragraph.
(e) If his termination of employment occurs under circumstances other
than any of those described in (a), (b), (c), and (d) above, then
any Target Award with respect to which the Period of Restriction
has not yet expired will be forfeited and retained by the
Company.
7.4 PERIOD OF RESTRICTION. The Period of Restriction for each Target
Award shall be determined by the Committee at the time the Target Award is
granted, subject to the following:
(a) The Period of Restriction may not exceed seven years and may not
be less than three years.
(b) The Committee may establish performance goals which, if met, will
reduce the duration of the Period of Restriction. However, the
Period of Restriction will in no event be less than three years.
(c) The Committee may establish different performance goals with
respect to different Target Awards. The goals may relate to
individual or corporate performance, or a combination thereof, as
the Committee sees fit. The performance goals may be structured
so that partial attainment of the goals will result in shortening
the Period of Restriction as to a portion of a Target Award
rather than the whole award.
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7.5 OTHER RESTRICTIONS. The Committee may impose other restrictions on
shares of Stock granted pursuant to the Plan if it deems such restrictions
advisable to comply with Federal or state securities laws and may legend the
Stock certificate(s) to give appropriate notice of such restrictions.
7.6 VOTING RIGHTS. During the Period of Restriction, Grantees holding
Target Awards granted hereunder may not exercise voting rights with respect to
the shares of Stock to which those awards relate. A Grantee's voting rights
shall be limited to those pertaining to shares of Stock actually issued to him
under the Plan.
7.7 SPECIAL PROVISIONS REGARDING PAYMENT OF TARGET AWARDS GRANTED
NOVEMBER 14, 1985 and February 3, 1987. Notwithstanding any other provision of
the Plan to the contrary, as to Target Awards granted November 14, 1985, and
February 3, 1987, if a Grantee's early retirement or normal retirement under the
Bemis Retirement Plan occurs before the end of the Period of Restriction,
distribution of the shares subject to said Target Award will occur at the end of
the Period of Restriction. It is recognized that the Period of Restriction may
not end until several years after the early retirement or normal retirement. At
the end of the Period of Restriction, the Company will issue to the Grantee a
number of shares of Stock equal to the number of shares represented by the
Target Award. No portion of the shares represented by said Target Award will be
forfeited due to the normal or early retirement. This section applies only if a
Grantee of a November 14, 1985 or February 3, 1987 Target Award has a normal or
early retirement under the Bemis Retirement Plan, and not if his termination of
employment occurs for any other reason.
7.8 SPECIAL PROVISIONS REGARDING PAYMENT OF TARGET AWARDS GRANTED
OCTOBER 5, 1988, OCTOBER 26, 1989, AND DECEMBER 7, 1990. This section
applies to each Target Award approved by the Committee on October 5, 1988,
October 26, 1989, and December 7, 1990. Each Target Award granted October 5,
1988 will become effective and outstanding on January 1, 1989, provided that
the Grantee is an Employee on January 1, 1989. Each Target Award granted
October 26, 1989 will become effective and outstanding on October 26, 1989,
provided the Grantee is an Employee on October 26, 1989. Each Target Award
granted December 7, 1990 will become effective and outstanding on January 1,
1991, provided the Grantee is an Employee on January 1, 1991. As to such
Target Awards:
(a) If such a Grantee has a normal retirement or early retirement
under the Bemis Retirement Plan prior to the end of the Period of
Restriction, distribution of any shares of Stock to which he is
entitled (as determined in (b) or (c)) will occur at the end of
the Period of Restriction. It is recognized that the Period of
Restriction may not end until several years after the normal or
early retirement.
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(b) If the Employee's termination of employment is a normal
retirement under the Bemis Retirement Plan, the number of shares
to which he is entitled at the end of the Period of Restriction
shall be equal to the number of shares represented by the Target
Award. No shares shall be forfeited by reason of the normal
retirement.
(c) If the Employee's termination of employment is an early
retirement under the Bemis Retirement Plan, the number of shares
to which he is entitled shall be determined pursuant to
Sec. 7.3(c), but the distribution of said shares will not occur
until the end of the Period of Restriction.
(d) If the Grantee remains an Employee until the end of the Period of
Restriction, or has a termination of employment during the Period
of Restriction which is not a normal or early retirement, the
number of shares, if any, to which he is entitled and the timing
of the distribution of said shares will be determined under
Sec. 7.3.
7.9 SPECIAL PROVISIONS REGARDING PAYMENT OF TARGET AWARDS GRANTED AFTER
SEPTEMBER 30, 1991. Notwithstanding Sec. 7.3(c) or any other provisions of the
Plan to the contrary, Target Awards granted after September 30, 1991 shall be
subject to the following:
(a) If the Grantee's early retirement under the Bemis Retirement plan
occurs before the end of the Period of Restriction, the Target
Award will be forfeited and retained by the Company. However,
the Committee may, in its sole discretion, provide for issuance
to the Grantee of all or any portion of the shares represented by
the Target Award. The issuance of any such shares may occur at
any point from the time of termination until the end of the
Period of Restriction, to be determined at the sole discretion of
the Committee. The Committee shall act promptly, on or about the
date of termination of employment, in deciding whether to provide
for the issuance and the date of any such issuance. The
Committee's decision with regard to a particular Grantee will not
be binding or precedential with regard to subsequent terminations
by other Grantees.
(b) If the Grantee's normal retirement under the Bemis Retirement
Plan occurs before the end of the Period of Restriction, the
number of shares to which he is entitled will be determined under
Sec. 7.3. Shares to which a Grantee becomes entitled under this
subsection shall be issued at the end of the Period of
Restriction.
(c) If the Grantee remains an Employee until the end of the Period of
Restriction, or has a termination of employment during the Period
of
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<PAGE>
Restriction which is not a normal or early retirement, the number
of shares, if any, to which he is entitled and the timing of the
distribution of said shares will be determined under Sec. 7.3.
SECTION 8. RIGHTS OF EMPLOYEES; RECIPIENTS OF GRANTS
8.1 EMPLOYMENT. Nothing in this Plan or in any grant of a Target Award
shall interfere with or limit in any way the right of the Company or a
Subsidiary to terminate any Employee's employment at any time or confer upon any
Employee any right to continue in the employ of the Company or a Subsidiary.
8.2 NONTRANSFERABILITY. No Grantee or Beneficiary shall, by virtue of
this Plan, have any interest in any specific asset or assets of the Company or
any Subsidiary. A Grantee or Beneficiary has only an unsecured contract right
to receive shares of Stock in accordance with and at the times specified by the
Plan. No Grantee or Beneficiary shall have the right to assign, pledge, or
otherwise dispose of any part of a Target Award hereunder prior to actual
receipt of the shares of Stock to which that award relates. However, a Grantee
may designate a Beneficiary as permitted by the Plan.
SECTION 9. BENEFICIARY DESIGNATION
9.1 BENEFICIARY DESIGNATION. Each Grantee under the Plan may, from time
to time, name any Beneficiary or Beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid in case of his
death before he receives any or all of such benefit. Each designation will
revoke all prior designations by the same Grantee, shall be in a form prescribed
by the Committee, and will be effective only when filed by the Grantee in
writing with the Committee during his lifetime. In the absence of any such
designation, benefits remaining unpaid at the Grantee's death shall be paid to
his estate, which shall be considered his Beneficiary for purposes of the Plan.
SECTION 10. FACILITY OF PAYMENT
10.1 FACILITY OF PAYMENT. When a person entitled to benefits under the
Plan is under legal disability, the Committee may direct the Company to pay the
benefits to such person's legal representative, or to a relative of such person
for such person's benefit. Any payment made in accordance with this Section
shall be a full and complete discharge of any liability for such payment under
the Plan.
SECTION 11. AMENDMENT AND TERMINATION
11.1 AMENDMENT AND TERMINATION. The Board, upon recommendation of the
Committee, at any time may terminate, and at any time and from time to time and
in any
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respect, may amend or modify the Plan, provided, however, that no such action of
the Board, without approval of the shareholders may:
(a) Increase the maximum number of shares of Stock that may be
granted under the Plan except as provided in Sec. 5.2.
(b) Extend the period during which shares of Stock may be granted.
(c) Permit the granting of shares of Stock to a person who is not an
Employee.
(d) Modify the requirements as to eligibility for participation in
the Plan.
(e) Increase materially the benefits accruing to Grantees under the
Plan.
(f) Increase materially the cost of the Plan.
(g) Withdraw the administration of the Plan from the Committee.
(h) Change the provisions in the Plan as to the qualification for
membership on the Committee.
No amendment, modification, or termination of the Plan shall in any manner
adversely affect any Stock or Target Award previously granted under the Plan
without the consent of the Grantee.
SECTION 12. MERGER, CONSOLIDATION, OR ACQUISITION
12.1 MERGER, CONSOLIDATION, OR ACQUISITION. If an "Event" occurs, all
restrictions shall lapse on Target Awards then outstanding under the Plan, and
the Company shall immediately issue to each Grantee the number of shares of
Stock represented by any such Target Awards. An "Event" shall be deemed to have
occurred if (a) a majority of the directors of the Company shall be persons
other than persons (i) for whose election proxies shall have been solicited by
the Board or (ii) who are then serving as directors appointed by the Board to
fill vacancies on the Board caused by death or resignation (but not by removal)
or to fill newly-created directorships, or (b) 40% or more of the outstanding
voting stock of the Company or all or substantially all of the assets of the
Company are acquired or beneficially owned (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) by any person (other than a Subsidiary) or
group of persons, acting in concert, whether by acquisition of assets, merger,
consolidation, tender or exchange offer for shares, or otherwise, or (c) the
shareholders of the Company approve any plan or agreement providing either for a
transaction in which the Company will cease to be an independent publicly owned
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corporation or for a sale or other disposition of all or substantially all of
the assets of the Company.
SECTION 13. TAX WITHHOLDING
13.1 TAX WITHHOLDING. The Company shall have the right to require a
Grantee or other person receiving Stock under the Plan to pay the Company a cash
amount sufficient to cover any required withholding taxes. In lieu of all or
any part of such a cash payment, the Committee may permit the individual to
elect to cover all or any part of the required withholdings, and to cover any
additional withholdings up to the amount needed to cover the individual's full
FICA and federal, state and local income tax with respect to income arising from
payment of the Award, through a reduction of the number of shares delivered to
him. Such elections are subject to the following:
(a) TIME OF ELECTION. Any such election by an individual who is
subject to the reporting requirements of Section 16 of the
Securities Exchange Act of 1934 ("Section 16") may be made only
during certain specified time periods, as follows:
(1) The election may be made during the period beginning on the
third business day following the date of public release of
the Company's quarterly or annual financial statements and
ending on the twelfth business day following such date of
public release, or
(2) The election may be made at least six months prior to the
date the Award is paid to him.
(3) However, an election by such a person may not be made within
six months of the date of grant of the Target Award to which
the payment relates; provided, however, that said
restriction does not apply in the event death or disability
of the individual to whom the option was granted occurs
during said six month period.
The foregoing restrictions do not apply to any person who is not
subject to the reporting requirements of Section 16.
(b) COMMITTEE APPROVAL; REVOCATION. Any such election by a person
subject to the reporting requirements of Section 16 is subject to
approval by the Committee. The Committee's approval may be
granted in advance but is subject to revocation by the Committee
at any time. Once such an election is made by such an
individual, he or she may not revoke it.
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SECTION 14. INDEMNIFICATION
14.1 INDEMNIFICATION. Each person who is or had been a member of the
Committee or of the Board shall be indemnified and held harmless by the Company
from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by him in connection with any claim, action, suit, or
proceeding to which he may be a party by reason of any action taken or failure
to act under the Plan. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be
entitled under the Company's Articles of Incorporation or By-Laws, as a matter
of law, or otherwise, or any power that the Company may have to indemnify them
or hold them harmless.
SECTION 15. GOVERNING LAW
15.1 GOVERNING LAW. The Plan, and all grants and other documents
delivered hereunder, shall be construed in accordance with and governed by the
laws of Minnesota.
SECTION 16. EXPENSES OF PLAN
16.1 EXPENSES OF PLAN. The expenses of administering the Plan shall be
borne by the Company.
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12-12-94
BEMIS RETIREMENT PLAN
(As Amended Effective January 1, 1994)
<PAGE>
BEMIS RETIREMENT PLAN
(As Amended Effective January 1, 1994)
TABLE OF CONTENTS
Page
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ARTICLE I GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.1 Name of Plan. . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.2 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.3 History of the Plan . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.4 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.5 Company . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.6 Participating Employer. . . . . . . . . . . . . . . . . . . 1
Sec. 1.7 Construction and Applicable Law . . . . . . . . . . . . . . 1
Sec. 1.8 Benefits Determined Under Provisions in Effect at
Termination of Employment . . . . . . . . . . . . . . . . . 2
ARTICLE II MISCELLANEOUS DEFINITIONS. . . . . . . . . . . . . . . . . . . . 3
Sec. 2.1 Accumulated Interest. . . . . . . . . . . . . . . . . . . . 3
Sec. 2.2 Active Participant. . . . . . . . . . . . . . . . . . . . . 3
Sec. 2.3 Actuary . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sec. 2.4 Administrator . . . . . . . . . . . . . . . . . . . . . . . 3
Sec. 2.5 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sec. 2.6 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . 3
Sec. 2.7 Board . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sec. 2.8 Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sec. 2.9 Common Control. . . . . . . . . . . . . . . . . . . . . . . 4
Sec. 2.10 ERISA.. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sec. 2.11 Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sec. 2.12 Funding Agency. . . . . . . . . . . . . . . . . . . . . . . 4
Sec. 2.14 Named Fiduciary . . . . . . . . . . . . . . . . . . . . . . 4
Sec. 2.15 Normal Retirement Age . . . . . . . . . . . . . . . . . . . 5
Sec. 2.16 Normal Retirement Date. . . . . . . . . . . . . . . . . . . 5
Sec. 2.17 Participant . . . . . . . . . . . . . . . . . . . . . . . . 5
Sec. 2.18 Predecessor Employer. . . . . . . . . . . . . . . . . . . . 5
Sec. 2.19 Qualified Employee. . . . . . . . . . . . . . . . . . . . . 5
Sec. 2.20 Successor Employer. . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III SERVICE PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . 7
Sec. 3.1 Employment Commencement Date. . . . . . . . . . . . . . . . 7
Sec. 3.2 Termination of Employment . . . . . . . . . . . . . . . . . 7
Sec. 3.3 Recognized Break In Service . . . . . . . . . . . . . . . . 7
Sec. 3.4 Elapsed Time. . . . . . . . . . . . . . . . . . . . . . . . 7
Sec. 3.5 Credited Service. . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV BENEFIT DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 11
Sec. 4.1 Normal Retirement . . . . . . . . . . . . . . . . . . . . . 11
Sec. 4.2 Early Retirement. . . . . . . . . . . . . . . . . . . . . . 11
Sec. 4.3 Disability Retirement . . . . . . . . . . . . . . . . . . . 11
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Sec. 4.4 Vested Termination. . . . . . . . . . . . . . . . . . . . . 11
Sec. 4.5 Accrued Monthly Pension . . . . . . . . . . . . . . . . . . 11
Sec. 4.6 Service Ratio . . . . . . . . . . . . . . . . . . . . . . . 12
Sec. 4.7 Monthly Salary. . . . . . . . . . . . . . . . . . . . . . . 12
Sec. 4.8 Final Average Salary. . . . . . . . . . . . . . . . . . . . 13
Sec. 4.9 Primary Social Security Benefit . . . . . . . . . . . . . . 13
Sec. 4.10 "Actuarial Equivalent", "Actuarial Value", "Present Value". 15
ARTICLE V PLAN PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . 17
Sec. 5.1 Eligibility for Participation . . . . . . . . . . . . . . . 17
Sec. 5.2 Duration of Participation . . . . . . . . . . . . . . . . . 17
Sec. 5.3 No Guarantee of Employment. . . . . . . . . . . . . . . . . 17
ARTICLE VI PENSION BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . 18
Sec. 6.1 Pension on Normal Retirement. . . . . . . . . . . . . . . . 18
Sec. 6.2 Pension on Early Retirement . . . . . . . . . . . . . . . . 18
Sec. 6.3 Pension on Disability Retirement. . . . . . . . . . . . . . 19
Sec. 6.4 Pension on Vested Termination . . . . . . . . . . . . . . . 19
Sec. 6.5 Deduction for Other Pension Payments. . . . . . . . . . . . 20
Sec. 6.6 Amendments Affecting Pension Rights . . . . . . . . . . . . 20
Sec. 6.7 Suspension of Benefits and Effect of Reemployment . . . . . 20
Sec. 6.8 Family Income Coverage. . . . . . . . . . . . . . . . . . . 21
Sec. 6.9 Effect of Participation in Variable Annuity Fund Prior to
January 1, 1969. . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII SURVIVOR'S BENEFITS . . . . . . . . . . . . . . . . . . . . . . 23
Sec. 7.1 Qualified Preretirement Survivor Annuity. . . . . . . . . . 23
Sec. 7.2 Qualified Joint and Survivor Annuity. . . . . . . . . . . . 24
Sec. 7.3 Election Procedure. . . . . . . . . . . . . . . . . . . . . 25
Sec. 7.4 Optional Settlements. . . . . . . . . . . . . . . . . . . . 26
Sec. 7.5 Other Death Benefits. . . . . . . . . . . . . . . . . . . . 26
ARTICLE VIII MISCELLANEOUS BENEFIT PROVISIONS . . . . . . . . . . . . . . . 28
Sec. 8.1 Commencement Date for Pension Payments. . . . . . . . . . . 28
Sec. 8.2 Payment of Small Amounts and Certain Consequences Thereof . 28
Sec. 8.3 No Other Benefits . . . . . . . . . . . . . . . . . . . . . 29
Sec. 8.4 Source of Benefits. . . . . . . . . . . . . . . . . . . . . 29
Sec. 8.5 Incompetent Payee . . . . . . . . . . . . . . . . . . . . . 29
Sec. 8.6 Assignment or Alienation of Benefits. . . . . . . . . . . . 29
Sec. 8.7 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . 30
Sec. 8.8 Conditions Precedent. . . . . . . . . . . . . . . . . . . . 30
Sec. 8.9 Company Directions to Funding Agency. . . . . . . . . . . . 30
Sec. 8.10 Benefits Not Increased by Actuarial Gains . . . . . . . . . 30
Sec. 8.11 Pensions Not Decreased on Account of Certain Social
Security Increases. . . . . . . . . . . . . . . . . . . . . 30
Sec. 8.12 Maximum Limitations on Benefits . . . . . . . . . . . . . . 31
Sec. 8.13 Distributions Made in Accordance with Code Section
401(a)(9) . . . . . . . . . . . . . . . . . . . . . . . . . 33
Sec. 8.14 Deemed Cash-Out Upon Termination of Employment for
Unvested Participants . . . . . . . . . . . . . . . . . . . 33
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Sec. 8.15 Rollovers and Transfers to Other Qualified Plans. . . . . . 33
Sec. 8.16 Special Benefit Limitation. . . . . . . . . . . . . . . . . 34
ARTICLE IX FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Sec. 9.1 Composition . . . . . . . . . . . . . . . . . . . . . . . . 35
Sec. 9.2 Funding Agency. . . . . . . . . . . . . . . . . . . . . . . 35
Sec. 9.3 Compensation and Expenses of Funding Agency . . . . . . . . 35
Sec. 9.4 Securities and Property of Participating Employers. . . . . 35
Sec. 9.5 No Diversion. . . . . . . . . . . . . . . . . . . . . . . . 35
Sec. 9.6 Employer Contributions. . . . . . . . . . . . . . . . . . . 36
ARTICLE X ACTUARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Sec. 10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . 37
Sec. 10.2 Responsibilities. . . . . . . . . . . . . . . . . . . . . . 37
Sec. 10.3 Compensation. . . . . . . . . . . . . . . . . . . . . . . . 37
Sec. 10.4 Resignation, Removal, and Successor . . . . . . . . . . . . 37
ARTICLE XI ADMINISTRATION OF PLAN . . . . . . . . . . . . . . . . . . . . . 38
Sec. 11.1 Administration by Company . . . . . . . . . . . . . . . . . 38
Sec. 11.2 Certain Fiduciary Provisions. . . . . . . . . . . . . . . . 38
Sec. 11.3 Discrimination Prohibited . . . . . . . . . . . . . . . . . 39
Sec. 11.4 Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . 39
Sec. 11.5 Correction of Errors. . . . . . . . . . . . . . . . . . . . 39
Sec. 11.6 Records . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Sec. 11.7 General Fiduciary Standard. . . . . . . . . . . . . . . . . 39
Sec. 11.8 Prohibited Transactions . . . . . . . . . . . . . . . . . . 39
Sec. 11.9 Claims Procedure. . . . . . . . . . . . . . . . . . . . . . 39
Sec. 11.10 Bonding . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Sec. 11.11 Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . 40
Sec. 11.12 Agent For Legal Process . . . . . . . . . . . . . . . . . . 40
Sec. 11.13 Indemnification . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE XII AMENDMENT, TERMINATION, MERGER. . . . . . . . . . . . . . . . . 41
Sec. 12.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 41
Sec. 12.2 Discontinuance of Joint Participation in Plan by a
Participating Employer. . . . . . . . . . . . . . . . . . . 41
Sec. 12.3 Reorganization of Participating Employers . . . . . . . . . 41
Sec. 12.4 Termination . . . . . . . . . . . . . . . . . . . . . . . . 41
Sec. 12.5 Partial Termination . . . . . . . . . . . . . . . . . . . . 44
Sec. 12.6 Merger, Consolidation, or Transfer of Plan Assets . . . . . 44
Sec. 12.7 Deferral of Distributions . . . . . . . . . . . . . . . . . 44
ARTICLE XIII MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 45
Sec. 13.1 Insurance Company Not Responsible for Validity of Plan. . . 45
Sec. 13.2 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . 45
Sec. 13.3 Capitalized Definitions . . . . . . . . . . . . . . . . . . 45
Sec. 13.4 Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Sec. 13.5 Use of Compounds of Word "Here" . . . . . . . . . . . . . . 45
Sec. 13.6 Construed as a Whole. . . . . . . . . . . . . . . . . . . . 45
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ARTICLE XIV TOP-HEAVY PLAN PROVISIONS . . . . . . . . . . . . . . . . . . . 46
Sec. 14.1 Key Employee Defined. . . . . . . . . . . . . . . . . . . . 46
Sec. 14.2 Determination of Top-Heavy Status . . . . . . . . . . . . . 46
Sec. 14.3 Minimum Accrued Benefit . . . . . . . . . . . . . . . . . . 47
Sec. 14.4 Vesting Schedule. . . . . . . . . . . . . . . . . . . . . . 49
Sec. 14.5 Participation under Defined Benefit Plan and Defined
Contribution Plan . . . . . . . . . . . . . . . . . . . . . 49
Sec. 14.6 Definition of Employer. . . . . . . . . . . . . . . . . . . 49
Sec. 14.7 Exception For Collective Bargaining Unit. . . . . . . . . . 50
iv
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BEMIS RETIREMENT PLAN
(As Amended Effective January 1, 1994)
ARTICLE I
GENERAL
Sec. 1.1 NAME OF PLAN. The name of the pension plan set forth
herein is "Bemis Retirement Plan". It is sometimes herein referred to as the
"Plan".
Sec. 1.2 PURPOSE. The Plan has been established so that
eligible employees will have a source of retirement income in addition to the
other sources of retirement income available to them.
Sec. 1.3 HISTORY OF THE PLAN. The Company on December 21,
1945 established the Bemis Bro. Bag Company Retirement Income Plan and Trust
(sometimes referred to as "S&RIP"), under which retirement benefits were to be
provided for eligible employees. Subsequently, on March 12, 1958 the Company
established the Bemis Bro. Bag Company Supplemental Pension Plan (sometimes
referred to as "SPP"). Thereafter, the two plans were amended and combined into
one plan, the Bemis Retirement Plan, said amendment being effective as of
December 31, 1961 for the S&RIP and as of January 1, 1962 for the SPP.
Subsequently, the Plan was amended from time to time. Effective January 1,
1994, the Plan was amended and entirely restated as set forth herein.
Sec. 1.4 PLAN YEAR. A "Plan Year" is the 12-consecutive-month
period commencing on January 1 and is the year on which records of the Plan are
kept.
Sec. 1.5 COMPANY. The "Company" is Bemis Company, Inc., a
Missouri corporation, and any Successor Employer thereof.
Sec. 1.6 PARTICIPATING EMPLOYER. The Company is a
Participating Employer in the Plan. With the consent of the Company, any other
employer may also become a Participating Employer effective as of a date
specified by it in its adoption of the Plan. Also with such consent, any such
adopting employer may modify the provisions of the Plan as they shall be
applicable to its employees. Any Successor Employer to a Participating Employer
shall also be a Participating Employer in the Plan. The other Participating
Employers on December 1, 1994 are:
(a) Accraply, Inc., an Ohio corporation.
(b) Curwood, Inc. a Delaware corporation.
(c) Hayssen Manufacturing Company, a Delaware corporation.
(d) MacKay/Gravure Systems, Inc., a Kentucky corporation.
(e) Mankato Corporation, a Delaware corporation.
(f) Morgan Adhesives Company, an Ohio corporation.
Sec. 1.7 CONSTRUCTION AND APPLICABLE LAW. The Plan is intended to
meet the requirements for qualification under Code section 401(a). The Plan is
also intended to be in full
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compliance with applicable requirements of ERISA. The Plan shall be administered
and construed consistent with said intent. It shall also be construed and
administered according to the internal, substantive laws of the State of
Minnesota (without regard to the conflict of law rules of the State of Minnesota
or of any other jurisdiction) to the extent that such laws are not preempted by
the laws of the United States of America. All controversies, disputes, and
claims arising hereunder shall be submitted to the United States District Court
for the District of Minnesota, except as otherwise provided in any trust
agreement entered into with a Funding Agency.
Sec. 1.8 BENEFITS DETERMINED UNDER PROVISIONS IN EFFECT AT
TERMINATION OF EMPLOYMENT. Except as may be specifically provided herein to the
contrary, with respect to a Participant whose Termination of Employment has
occurred, benefits under the Plan attributable to service prior to his
Termination of Employment shall be determined and paid in accordance with the
provisions of the Plan as in effect on the date his Termination of Employment
occurred unless he becomes an Active Participant after that date and such active
participation causes a contrary result under the provisions hereof.
2
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ARTICLE II
MISCELLANEOUS DEFINITIONS
Sec. 2.1 ACCUMULATED INTEREST. "Accumulated Interest" respecting
employee contributions made prior to their discontinuance effective January 1,
1972 and respecting the cash value of certain annuity contracts purchased in
1962 shall be determined as follows:
(a) Accumulated Interest for years prior to 1976 shall be determined
according to the provisions of the Plan as in effect on December 31,
1975.
(b) Accumulated Interest for years after 1975 and prior to 1988 shall be
computed at the annual rate of 5% per year, compounded annually.
(c) Accumulated Interest for years after 1987 shall be computed at an
annual rate equal to 120% of the federal mid-term rate for January
of the particular plan year.
Accumulated Interest shall be determined to the first day of the month in which
said determination is to be made, but not later than the date as of which
benefits with respect to the Participant commence under the Plan. If a
retroactive pension payment is made with respect to a Participant, Accumulated
Interest will not accrue after the first day of the earliest month with respect
to which the retroactive payment is made.
Sec. 2.2 ACTIVE PARTICIPANT. An employee is an "Active
Participant" only while he is both a Participant and a Qualified Employee.
Sec. 2.3 ACTUARY. "Actuary" means the individual, partnership,
corporation, or other organization appointed and acting as such from time to
time pursuant to Article X.
Sec. 2.4 ADMINISTRATOR. The Company is the "Administrator" of the
Plan for purposes of ERISA.
Sec. 2.5 AFFILIATE. "Affiliate" means any trade or business entity
under Common Control with a Participating Employer, or under Common Control with
a Predecessor Employer while it is such.
Sec. 2.6 BENEFICIARY. A "Beneficiary" is the person or persons,
natural or otherwise, designated by a Participant or former Participant to
receive any benefit payable under the Plan in the event of his death except the
benefits payable to his spouse pursuant to Sec. 7.1 or 7.2 or to a joint or
contingent annuitant. A Participant who has designated a Beneficiary may,
without the consent of such Beneficiary, alter or revoke such designation. To
be effective, any such designation, alteration, or revocation shall be in
writing, in such form as the Company may prescribe, and shall be filed with the
Company prior to the Participant's death. If at the time a death benefit
becomes payable there is not on file with the Company a fully effectual
designation of Beneficiary, or if the designated Beneficiary does not survive
the Participant, the Beneficiary shall be the person or persons surviving him in
the first of the following classes in which there is a survivor, share and share
alike:
(a) his spouse;
3
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(b) his children, except that if any of his children predecease him but
leave issue surviving him such issue shall take by right of
representation the share their parent would have taken if living;
(c) his parents;
(d) his brothers and sisters;
(e) his personal representative or representatives (executors or
administrators).
Determination of who the Beneficiary is in each case shall be made by the
Company.
Sec. 2.7 BOARD. The "Board" is the board of directors of the
Company, and includes any executive committee thereof authorized to act for said
board of directors.
Sec. 2.8 CODE. "Code" means the Internal Revenue Code of 1986 as
from time to time amended.
Sec. 2.9 COMMON CONTROL. A trade or business entity (whether a
corporation, partnership, sole proprietorship or otherwise) is under "Common
Control" with another trade or business entity (i) if both entities are
corporations which are members of a controlled group of corporations as defined
in Code section 414(b), or (ii) if both entities are trades or businesses
(whether or not incorporated) which are under common control as defined in Code
section 414(c), or (iii) if both entities are members of an affiliated service
group as defined in Code section 414(m), or (iv) if both entities are required
to be aggregated pursuant to regulations under Code section 414(o). In applying
the preceding sentence for purposes of Sec. 8.12, the provisions of Code section
414(b) and (c) are deemed to be modified as provided in Code section 415(h).
Sec. 2.10 ERISA. "ERISA" means the Employee Retirement Income
Security Act of 1974 as from time to time amended.
Sec. 2.11 FUND. "Fund" means the aggregate of assets described in
Sec. 9.1.
Sec. 2.12 FUNDING AGENCY. "Funding Agency" is a trustee or
trustees or an insurance company appointed and acting from time to time in
accordance with the provisions of Sec. 9.2 for the purpose of holding,
investing, and disbursing all or a part of the Fund.
Sec. 2.13 LEASED EMPLOYEE. "Leased Employees" within the meaning
of Code section 414(n)(2) and individuals who would meet those requirements but
for failure to complete a year of leased service shall be counted as employees
for purposes of determining Elapsed Time, but not for purposes of determining
Credited Service. However, if Leased Employees constitute less than twenty
percent of the Employer's nonhighly compensated work force within the meaning of
Code section 414(n)(5)(C)(ii), Leased Employees covered by a plan described in
Code section 414(n)(5) shall not be counted as employees. Leased Employees may
not accrue benefits under the Plan for service as a Leased Employee.
Sec. 2.14 NAMED FIDUCIARY. The Company is a "Named Fiduciary" for
purposes of ERISA with authority to control or manage the operation and
administration of the Plan, including control or management of the assets of the
Plan. Other persons are also Named
4
<PAGE>
Fiduciaries if so provided by ERISA or if so identified by the Company, by
action of the Board. Such other person or persons shall have such authority to
control or manage the operation and administration of the Plan, including
control or management of the assets of the Plan, as may be provided by ERISA or
as may be allocated by the Company, by action of the Board.
Sec. 2.15 NORMAL RETIREMENT AGE. "Normal Retirement Age" is age
65.
Sec. 2.16 NORMAL RETIREMENT DATE. "Normal Retirement Date" is the
last day of the month in which a person attains Normal Retirement Age.
Sec. 2.17 PARTICIPANT. A "Participant" is an individual described
as such in Article V.
Sec. 2.18 PREDECESSOR EMPLOYER. Any corporation, partnership,
firm, or individual, a substantial part of the assets and employees of which are
acquired by a successor, is a "Predecessor Employer" if named in this section
and subject to any conditions and limitations with respect thereto imposed by
this section. To be considered a Predecessor Employer, the acquisition of
assets and employees of a corporation, partnership, firm, or individual must be
by a Participating Employer, by an Affiliate, or by another Predecessor
Employer. As of January 1, 1994, there are no Predecessor Employers.
Sec. 2.19 QUALIFIED EMPLOYEE. "Qualified Employee" means a person
in the employ of a Participating Employer who is compensated in whole or in part
on a regular stated salary basis or who is employed in an office clerical or
supervisory position, subject to the following:
(a) Except as to employees of the Company, an employee is not a
Qualified Employee prior to the date as of which his employer
becomes a Participating Employer.
(b) A nonresident alien while not receiving earned income (within the
meaning of Code section 911(d)(2)) from a Participating Employer
which constitutes income from sources within the United States
(within the meaning of Code section 861(a)(3)) is not a Qualified
Employee.
(c) Eligibility of employees in a collective bargaining unit to
participate in the Plan shall be subject to negotiations with the
representative of that unit. During any period that an employee is
covered by the provisions of a collective bargaining agreement
between his Participating Employer and such representative he shall
not be considered a Qualified Employee for purposes of this Plan
unless such agreement expressly so provides. For purposes of this
section only, such an agreement shall be deemed to continue after
its formal expiration during collective bargaining negotiations
pending the execution of a new agreement.
(d) An employee shall be deemed to be a Qualified Employee during a
period of absence from active service which does not result from his
Termination of Employment, provided he is a Qualified Employee at
the commencement of such period of absence.
(e) An employee is not a Qualified Employee during any period of
employment at one of the following locations:
5
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(1) The following plants which were acquired from Princeton
Packaging to:
(A) Hazleton, Pennsylvania.
(B) Dallas, Texas.
(C) Marietta, Georgia.
(2) Fremont, Ohio plant of Curwood, Inc., formerly owned by
Milprint, Inc.
(3) Oshkosh, Wisconsin Cur-Med plant acquired from Hargro Health
Care Packaging.
(4) Scranton, Pennsylvania plant of Morgan Adhesives Company.
(5) Non-exempt employees at the Nellis, Nevada plant of Morgan
Adhesives, Inc.
Sec. 2.20 SUCCESSOR EMPLOYER. A "Successor Employer" is any entity
that succeeds to the business of a Participating Employer through merger,
consolidation, acquisition of all or substantially all of its assets, or any
other means and which elects before or within a reasonable time after such
succession, by appropriate action evidenced in writing, to continue the Plan;
provided, however, that in the case of such succession with respect to any
Participating Employer other than the Company, the acquiring entity shall be a
Successor Employer only if consent thereto is granted by the Company, by action
of the Board.
6
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ARTICLE III
SERVICE PROVISIONS
Sec. 3.1 EMPLOYMENT COMMENCEMENT DATE. "Employment Commencement
Date" means the date on which a person first becomes an employee of a
Participating Employer (whether before or after the Participating Employer
becomes such), an Affiliate, or a Predecessor Employer.
Sec. 3.2 TERMINATION OF EMPLOYMENT. The "Termination of
Employment" of an employee for purposes of the Plan shall be deemed to occur on
the date of his resignation, discharge, retirement, death, failure to return to
active work at the end of an authorized leave of absence or the authorized
extension or extensions thereof, failure to return to work when duly called
following a temporary layoff, or upon the happening of any other event or
circumstance which, under the policy of his Participating Employer, Affiliate,
or Predecessor Employer as in effect from time to time, results in the
termination of the employer-employee relationship; provided, however, that
"Termination of Employment" shall not be deemed to occur upon a transfer between
any combination of Participating Employers, Affiliates, and Predecessor
Employers. If a Participant becomes eligible to receive benefits under a long
term disability program sponsored by his employer, his Termination of Employment
for purposes of the Plan will be deemed not to have occurred until the earlier
of his Normal Retirement Date or the termination of his benefits under such long
term disability program.
Sec. 3.3 RECOGNIZED BREAK IN SERVICE. A "Recognized Break in
Service" is a period of at least 12 consecutive months duration which begins on
the day on which an individual's Termination of Employment occurs. A Recognized
Break In Service ends, if ever, on the day on which the individual again becomes
an employee of a Participating Employer, an Affiliate or a Predecessor Employer.
(a) If an individual is absent from work for maternity or paternity
reasons, and the absence begins on or after January 1, 1985, the
12-month period beginning with the first day of such absence shall
not be included in a Recognized Break In Service.
(b) For purposes of this paragraph, an absence from work for maternity
or paternity reasons means an absence (i) by reason of the pregnancy
of the individual, (ii) by reason of a birth of a child of the
individual, (iii) by reason of the placement of a child with the
individual in connection with the adoption of such a child by such
individual, or (iv) for purposes of caring for such child for a
period beginning immediately following such birth or placement.
Sec. 3.4 ELAPSED TIME. A Participant's "Elapsed Time" is equal to
the aggregate time elapsed between his Employment Commencement Date and his most
recent Termination of Employment or any other date as of which a determination
of Elapsed Time is to be made, expressed in years and days, reduced as follows:
(a) All Recognized Breaks In Service shall be subtracted. Any periods
that would have been included in a Recognized Break In Service if
Sec. 3.3(a) did not apply shall also be subtracted.
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<PAGE>
(b) With respect to employers participating in the Plan on December 31,
1969, service rendered by an employee prior to the date his employer
adopted the Plan shall be recognized as Elapsed Time only to the
extent service with the employer was recognized as continuous
service under the Plan as in effect on December 31, 1969; provided,
however, that service with Jaite Paper Bag Company; Claremont Paper
Mills, Inc.; W. T. Winn Company; Cello-Vision Corporation; Clear
Bag-Winnpak, Inc.; and Mountain Paper Products Corporation shall be
included in Elapsed Time.
(c) Except as otherwise specifically provided herein, service with an
employer prior to the date it becomes a Participating Employer or
Affiliate shall not be included in an employee's Elapsed Time. In
the following instances, however, service prior to said date shall
be included in an employee's Elapsed Time.
(1) Service with Lustour Corporation prior to the date Lustour
Corporation became an Affiliate shall be included in the
Elapsed Time of any person in the employ of Lustour
Corporation on January 1, 1969.
(2) Service with Western Litho Plate and Supply Company, Inc. or
any subsidiary thereof prior to the date Western Litho Plate
and Supply Company, Inc. became an Affiliate shall be
included in the Elapsed Time of any person in the employ of
Western Litho Plate and Supply Company on January 1, 1969.
(3) Service prior to January 1, 1971 with the Mankato Division
of Harrison & Smith Company, Inc.; Mankato Corporation;
Mankato Paper Box Company; or a predecessor thereof shall be
included in the Elapsed Time of any person in the employ of
the Mankato Division of Harrison & Smith Company, Inc. on
January 1, 1971.
(4) Service prior to January 1, 1971 with Perry Industries, Inc.
or a predecessor corporation shall be included in the
Elapsed Time of any person in the employ of Perry
Industries, Inc. on January 1, 1971.
(5) Service prior to August 31, 1977 with Elconco Corporation, a
Minnesota corporation, or any affiliate or predecessor
thereof at the facility later operated by Accraply, Inc.
shall be included in the Elapsed Time of any person in the
employ of a Participating Employer on or after January 1,
1986.
(6) In the case of any Participant who was an employee of
Arnoldware-Rogers, Inc., a Vermont corporation, immediately
prior to the acquisition of said corporation by the Company
in 1980 and who is an employee of a Participating Employer
or an Affiliate on January 1, 1987, his Elapsed Time shall
include his continuous service beginning on his last date of
hire prior to said acquisition date and ending on said
acquisition date.
(d) If an employee has a Termination of Employment and is later rehired
by a Participating Employer or Affiliate, his Elapsed Time prior to
said Termination of Employment shall not be disregarded by reason of
said Termination of Employment.
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(e) Notwithstanding the above provisions of this section, the following
rules are applicable in determining the Elapsed Time of any person
who was a Participant on December 31, 1985:
(1) Such a person's Elapsed Time shall not be less than the sum
of the following:
(A) His Years of Vesting Service through December 31,
1985 determined under the Plan as it existed on
December 31, 1983.
(B) His Elapsed Time for service on and after January 1,
1986.
(2) If such a person had five or more Years of Vesting Service
through December 31, 1985 determined under the Plan as it
existed on December 31, 1983, his Elapsed Time for his total
periods of service shall not be less than the Years of
Vesting Service he would have had if the Plan as in effect
on December 31, 1983 had remained in effect.
Sec. 3.5 CREDITED SERVICE. A Participant's "Credited Service"
shall be equal to his Elapsed Time, subject to the following:
(a) Credited Service does not include service when the employee was not
a Qualified Employee, except as follows:
(1) If the employee was a Qualified Employee on January 1, 1976,
he shall be deemed to be a Qualified Employee during periods
of service prior to said date during which he would have
been a Qualified Employee but for the fact he was neither
compensated in whole or in part on a regular stated salary
basis nor employed in an office clerical position. His
Credited Service for the period prior to January 1, 1976
shall be adjusted to reflect such additional service as a
Qualified Employee.
(2) If a former employee was not an employee of a Participating
Employer or Affiliate on January 1, 1976 but subsequently
was re-employed and became a Qualified Employee upon his re-
employment, he shall be deemed to be a Qualified Employee
during period of service prior to January 1, 1976 during
which he would have been a Qualified Employee but for the
fact he was neither compensated in whole or in part on a
regular stated salary basis nor employed in an office
clerical position; provided, however, that he shall not be
deemed to be a Qualified Employee for any such additional
period with respect to which he is eligible to receive a
vested benefit pursuant to any other pension plan that meets
the requirements of Code section 401(a). His Credited
Service for the period prior to January 1, 1976 shall be
adjusted to reflect such additional service as a Qualified
Employee.
(3) If a Participant is transferred from a position as a
Qualified Employee to a position in Canada as an employee of
a Participating Employer or Affiliate, and he subsequently
is transferred from the position in Canada back to a
position as a Qualified Employee, and he serves as a
Qualified Employee for
9
<PAGE>
at least one year after the subsequent transfer, the service
in Canada will be included in his Credited Service.
However, said additional Credited Service is subject to the
limitations in subsections (b) and (e).
(4) If a Participant is a Qualified Employee on December 31,
1986 and during the period January 1, 1976 through
December 31, 1986 he transferred from an hourly paid
position with Lustour Corporation or with Lustour's MacKay
Engraving operation to a position as a Qualified Employee of
Lustour or MacKay, his Credited Service shall include his
service as an hourly paid employee of Lustour or MacKay from
the later of (i) the date the Company acquired Lustour
(which was on or about August 1, 1968) or (ii) the
individual's last Employment Commencement Date preceding the
date of transfer. However, said additional Credited Service
is subject to the limitations in subsections (b) and (e).
(b) An employee will not accrue credit for a Plan Year prior to 1985 if
he did not attain age 25 on or before the last day of the Plan Year.
(c) Service with an employer prior to the date it becomes a
Participating Employer is not included in Credited Service, except
as follows:
(1) Such service prior to January 1, 1976 shall be included in
Credited Service to the extent provided in the Plan as in
effect on December 31, 1975.
(2) Such service shall be included in Credited Service to the
extent provided in any applicable appendix to the Plan.
(3) In the case of any Participant who was an employee of
Arnoldware-Rogers, Inc., a Vermont corporation, immediately
prior to the acquisition of said corporation by the Company
in 1980 and who was a Qualified Employee on January 1, 1987,
his Credited Service shall include his continuous service
beginning on his last date of hire prior to said acquisition
date and ending on said acquisition date. However, said
additional Credited Service shall be limited to service as a
salaried, office clerical, or supervisory employee, and is
subject to the limitations in subsection (b).
(d) If a leave of absence or layoff continues for longer than 365
calendar days, the period of such leave of absence or layoff in
excess of 365 calendar days shall not be counted as Credited
Service. However, the foregoing limitation does not apply to
periods while the Participant is receiving long term disability
benefits under a long term disability plan sponsored by a
Participating Employer.
(e) For purposes of determining a Participant's Credited Service, his
Elapsed Time will be determined without regard to Sec. 3.4(e).
Increased service granted under that subsection applies only for
purposes of determining whether the Participant is vested, and not
for purposes of determining his Credited Service.
(f) If a Participant withdrew employee contributions or received a
single sum distribution in lieu of a monthly pension, his Credited
Service will be disregarded if so provided in the Plan provision
pursuant to which the withdrawal or distribution occurred.
10
<PAGE>
ARTICLE IV
BENEFIT DEFINITIONS
Sec. 4.1 NORMAL RETIREMENT. "Normal Retirement" means Termination
of Employment of a Participant (except termination by his death) occurring on or
after the date he attains Normal Retirement Age.
Sec. 4.2 EARLY RETIREMENT. "Early Retirement" means any
Termination of Employment of a Participant (except termination by his death) (i)
after he has both attained age 55 and completed 10 years of Elapsed Time and
(ii) before he attains Normal Retirement Age.
Sec. 4.3 DISABILITY RETIREMENT. If the Company determines upon the
basis of competent medical advice that the Termination of Employment of a
Participant occurred because he is permanently disabled by bodily injury or
disease from performing the regular duties of his position with his employer,
and if at the time of such Termination of Employment the Participant has
attained age 50 and completed 10 years of Elapsed Time, such Termination of
Employment shall be considered to be a "Disability Retirement." Notwithstanding
any provision of the Plan to the contrary, if a Participant becomes eligible to
receive benefits under a long term disability program sponsored by his employer,
his Termination of Employment will be deemed not to have occurred until the
earlier of his Normal Retirement Date or the termination of his benefits under
such long term disability program. Prior to the termination of such benefits, he
shall be considered to be a Qualified Employee and his Monthly Salary shall be
deemed to remain the same as last determined.
Sec. 4.4 VESTED TERMINATION. "Vested Termination" means any
Termination of Employment of a Participant (except termination by his death)
that occurs after he completes 5 years of Elapsed Time and that is not defined
herein as a form of retirement.
Sec. 4.5 ACCRUED MONTHLY PENSION. A Participant's "Accrued Monthly
Pension" shall be determined as follows:
(a) A Participant's Accrued Monthly Pension as of any date shall be
equal to the product of the following:
(1) The greater of (i) 50% of his Final Average Salary minus 50%
of his Primary Social Security Benefit or (ii) $180.
(2) The number of his years (not exceeding 30) of Credited
Service determined as of said date, divided by 30.
(b) However, in no event shall a Participant's Accrued Monthly Pension
as of any January 1 be less than his Accrued Monthly Pension as of
the preceding January 1.
(c) Effective as of January 1, 1994, the annual limit on Compensation
the Plan may recognize under Code section 401(a)(17) was reduced to
$150,000. However, for any person who was a Participant on December
31, 1993, his Accrued Monthly Pension shall not be less than the sum
of (i) his Accrued Monthly Pension as of December 31, 1993, using
the Code section 401(a)(17) limit as then in effect, and based on
his pay and service through December 31, 1993, plus (ii) any
additional accruals after
11
<PAGE>
December 31, 1993, based on service after said date, with pay
determined under Code Section 401(a)(17) as amended January 1, 1994.
Sec. 4.6 SERVICE RATIO. A Participant's "Service Ratio" shall be
determined, when necessary to determine his pension benefit under Sections 6.3
or 6.4, as of his Termination of Employment, and shall be the ratio that his
years of Credited Service bears to the total Years of Credited Service he would
have had if his employment as a Qualified Employee had continued until his
Normal Retirement Date.
Sec. 4.7 MONTHLY SALARY. An employee's "Monthly Salary" shall
be determined as follows:
(a) If an employee is paid on a salaried or commission basis on the
earliest date in a Plan Year on which he is a Qualified Employee,
his Monthly Salary for such year is equal to the greater of (1) or
(2):
(1) An amount equal to his regular monthly salary as in effect
on January 1 of such year plus, where applicable, an amount
equal to the total commissions paid to him during the next
preceding year divided by 12. In any case where an employee
was not a Qualified Employee on January 1 of a Plan Year,
but transferred to a position as a Qualified Employee on a
later date in said Plan Year, his Monthly Salary for said
Plan Year shall be determined according to the preceding
sentence except that said amount shall be based on his
salary in effect immediately following said transfer.
(2) One-twelfth of the total compensation paid to him as an
employee during the immediately preceding Plan Year.
However, if the employee was not a Qualified Employee at any
time during the preceding Plan Year, this paragraph (2)
shall not be applicable and his Monthly Salary shall be
determined pursuant to paragraph (1).
If an employee is hourly paid on the earliest date in any such year
on which he is a Qualified Employee, his Monthly Salary for such
year is one-twelfth of the total compensation paid to him as an
employee during the immediately preceding year. However, no Monthly
Salary shall be determined with respect to a calendar year if such
an employee was not a Qualified Employee at any time during the
preceding year.
(b) Notwithstanding the foregoing:
(1) No Monthly Salary shall be determined for an employee for a
Plan Year unless he was a Qualified Employee during part or
all of that Plan Year. Whether he was a Qualified Employee
shall be determined without regard to paragraphs (1) and (2)
of Sec. 3.5(a).
(2) Allowances or reimbursements for expenses, payments or
contributions to or for the benefit of the employee under
any other deferred compensation, pension, profit sharing,
insurance, or other employee benefit plan, income derived
from receipt or exercise of stock options, phantom stock
awards, merchandise discounts, or benefits in the form of
property or the use of property shall not be included in
computing Monthly Salary.
12
<PAGE>
(c) For purposes of this section, an amount deferred by a Participant,
that the Participant could have elected to receive directly in cash,
under a qualified cash or deferred arrangement as defined in Code
section 401(k) or under a cafeteria plan established under Code
section 125 shall be recognized as salary or hourly wage and not as
a contribution for the benefit of the Participant under an employee
benefit plan. It shall therefore be recognized in determining his
regular monthly salary under (a)(1) and in determining his total
compensation under (a)(2) of this section. It shall be so
recognized in the Plan Year in which the cash payment would have
been made but for the deferral election. If a portion of the amount
deferred is later refunded to the Participant in cash, the amount
refunded shall not be included in Monthly Salary.
(d) A Participant's Monthly Salary for purposes of the Plan may not
exceed the amount prescribed under Code section 401(a)(17), subject
to the following:
(1) Said limit is $12,500 for 1994 or any prior Plan Year. For
each Plan Year after 1994, said limit shall be automatically
adjusted to reflect the cost of living adjustment factor
under Code section 415(d).
(2) If a Participant's Monthly Salary for a given Plan Year is
determined under subsection (a)(2), (i.e. is based on pay
during the preceding Plan Year), then the dollar limit under
Code section 401(a)(17) for the preceding Plan Year applies.
Sec. 4.8 FINAL AVERAGE SALARY. A Participant's "Final Average
Salary" is the highest average Monthly Salary for any five consecutive years out
of the last 15 consecutive years for which a Monthly Salary was determined under
Sec. 4.7, or the average for all such years if five or less. However, in any
case where a Participant elected to defer receipt of a portion of his salary or
other compensation from the year in which it would ordinarily have been paid to
a later year, his Final Average Salary shall not be greater than what it would
have been if he had received said compensation in the year in which it would
have been paid but for the deferral.
Sec. 4.9 PRIMARY SOCIAL SECURITY BENEFIT. "Primary Social
Security Benefit" for purposes of the Plan is an amount estimated by the Actuary
as of the date of an employee's Termination of Employment to be the Social
Security Act primary monthly old-age insurance benefit to which such employee is
entitled on the basis of his employment record, with benefit payments commencing
for the month in which he attains Normal Retirement Age or in which his
Termination of Employment occurs, if later. In making such estimate,
recognition shall be given to any adjustment in the benefit that is retroactive
to the month in which he attains Normal Retirement Age or the month in which his
Termination of Employment occurs, if later. Such estimate shall be made as
follows:
(a) The employee's compensation while employed by the Company shall be
determined on either or a combination of the following bases:
(1) On the basis of the employee's actual wage history as set
forth in the Company's books and records, except that the
employee may elect to supply the Company with his actual
wage history as provided in subsection (d).
(2) On the basis of an estimate of his compensation while
employed by the Company, subject to the following:
13
<PAGE>
(A) The employee has the right to elect to supply the
Company with his actual wage history as provided in
subsection (d).
(B) If the employee does not elect to supply the Company
with his actual wage history, the estimate is
consistent with subsection (c).
(b) The employee's wage history prior to his Employment Commencement
Date shall be determined as follows:
(1) The employee has the right to elect to supply the Company
with his actual wage history as provided in subsection (d).
(2) If the employee does not elect to supply the Company with
his actual wage history, an estimate of his wage history
prior to his Employment Commencement Date shall be made in a
manner consistent with subsection (c).
(c) If an employee does not elect to supply the Company with his actual
wage history, any estimate of his wage history prior to his
Termination of Employment or prior to his Employment Commencement
Date shall be made by applying a salary scale, projected backwards,
to the employee's annual rate of compensation as in effect
immediately after the period for which the estimate is being made.
Said scale is the actual percentage change in average wages from
year to year as determined by the Social Security Administration.
(d) If the employee so elects, in lieu of the Actuary estimating on his
compensation prior to his Termination of Employment or prior to his
Employment Commencement Date, he may direct the Actuary to estimate
his Primary Social Security Benefit on the basis of the employee's
actual wage history as furnished by the Social Security
Administration or such other source as the Company deems to be
reliable. The employee must, however, supply the Company with
satisfactory documentation of his actual wage history within a
reasonable period of time following the later of his Termination of
Employment and the date upon which the Company notifies him of the
benefit, if any, that he is entitled to receive under the Plan.
(e) Estimates under this section shall be based on the assumption that
the Social Security Act as in effect on the December 31 immediately
preceding the employee's Termination of Employment will remain
unchanged thereafter.
(f) Estimates under this section shall be based on the assumption that
after the December 31 immediately preceding the employee's
Termination of Employment, there will be no benefit or wage base
changes under the Social Security Act resulting from changes in the
cost of living.
(g) Estimates under this section shall be based on the assumption that
the employee will be in covered employment under the Social Security
Act until his attainment of Social Security Retirement Age (as
defined in Sec. 8.12(l)) and will continue to receive compensation
that would be treated as wages for purposes of the Social Security
Act at the same annual rate as he received such compensation for the
Plan
14
<PAGE>
Year ending on the December 31 coincident with or immediately
preceding his Termination of Employment.
(h) If an employee's Termination of Employment occurs immediately after
a period during which he was eligible to receive benefits under a
long term disability program sponsored by his employer, the
following will be applicable:
(1) It shall be assumed that during the period while he was
receiving long term disability benefits he was receiving
compensation that would be treated as wages for purposes of
the Social Security Act at the same annual rate as he
received such compensation for the Plan Year ending on the
December 31 immediately preceding the date as of which he
became eligible to receive long term disability benefits.
(2) After the later of (i) December 31, 1975 or (ii) the
December 31 immediately preceding the date as of which he
became eligible to receive long term disability benefits,
there will be no benefits or wage base changes under the
Social Security Act resulting from changes in the cost of
living.
This subsection is not applicable in any case where an employee
returns to active employment with a Participating Employer or
Affiliate after a period of long term disability.
(i) Estimates under this section shall be based on the assumption that
the employee will make timely application to receive his Social
Security Act primary monthly old-age insurance benefit with payments
commencing for the month in which he attains Normal Retirement Age,
or the month in which his Termination of Employment occurs, if
later, and will not disqualify himself from receiving said payments
by employment, self-employment, or in any other way.
Sec. 4.10 "ACTUARIAL EQUIVALENT", "ACTUARIAL VALUE", "PRESENT
VALUE". Each "Actuarial Equivalent", "Actuarial Value", or "Present Value"
shall he determined by the Actuary in accordance with the following:
(a) For determinations involving benefits payable pursuant to the
sections listed below, the amount of such benefit shall equal the
Participant's Accrued Monthly Pension multiplied by the appropriate
factor as set forth in the following table:
Form of Benefit Factor
- --------------------- ---------------------
Sec. 7.2 (Qualified Joint and Survivor 90% increased by 3/4 of 1% for each
Annuity) and Sec. 7.4 (Joint and 1/2 year that the Participant's spouse
Survivor Annuity) or designated joint annuitant is
older than the Participant and
decreased by 3/4 of 1% for each
year that the Participant's spouse
or designated joint annuitant is
younger than the Participant;
provided, however, that such factor
shall never exceed 100%.
Sec. 7.4 (Joint and 3/4 Survivor Annuity) 85% increased by 88/100 of 1% for
each year that the Participant's
designated joint
15
<PAGE>
annuitant is older than the
Participant and decreased by 88/100
of 1% for each year that the
Participant's designated joint
annuitant is younger than the
Participant; provided, however,
that such factor shall never exceed
100%.
Sec. 7.4 (Joint and Full Survivor Annuity) 80% increased by 1% for each year
that the Participant's designated
joint annuitant is older than the
Participant and decreased by 1% for
each year that the Participant's
designated joint annuitant is
younger than the Participant;
provided, however, that such factor
shall never exceed 100%.
Sec. 7.4 (Life and 10 Years Certain) 91%
For the purposes of the above table, the difference in age between
the Participant and the Participant's spouse or designated joint
annuitant, as the case may be, shall be measured in whole years, and
partial years shall be disregarded.
(b) For determinations pursuant to Sec. 8.12 and Sec. 14.2 each
"Actuarial Equivalent" or "present value" shall be determined on the
basis of a 5% interest rate assumption and the mortality assumptions
contained in the 1983 Group Annuity Mortality Table.
(c) For determinations of lump sum payment of benefits which would
otherwise be payable as monthly annuities, each Actuarial Equivalent
shall be determined by the Actuary on the basis of both the
mortality assumptions for healthy males and the interest rate
assumptions which are used in the Pension Benefit Guaranty
Corporation immediate or deferred annuity factors (whichever is
applicable) as in effect on the first day of the Plan Year in which
the lump sum is distributed. Such assumption shall also be used (i)
for purposes of Sec. 8.6 in determining the present value of accrued
benefits which are to be paid under a qualified domestic relations
order before payments commence to the Participant, (ii) for purposes
of the adjustment in Sec. 9.3 of Appendix D if a Hayssen Plan
Participant withdraws his Prior Service Benefit on or after
September 1, 1985, and (iii) for all other purposes for which
Actuarial Equivalents must be determined under the Plan except as
specifically provided elsewhere in the Plan.
(d) Each determination involving an Actuarial Equivalent shall be made
in accordance with any applicable regulation promulgated by the
Secretary of Labor or the Secretary of the Treasury.
16
<PAGE>
ARTICLE V
PLAN PARTICIPATION
Sec. 5.1 ELIGIBILITY FOR PARTICIPATION. An employee of a
Participating Employer shall become a Participant in the Plan on the earliest
date, on or after the date the Plan becomes effective with respect to his
Participating Employer, on which he both (i) is a Qualified Employee and (ii)
has completed one year of Elapsed Time.
Sec. 5.2 DURATION OF PARTICIPATION. A Participant shall
continue to be such until the later of:
(a) His Termination of Employment.
(b) The date all benefits, if any, to which he is entitled hereunder
have been distributed to him from the Fund.
Sec. 5.3 NO GUARANTEE OF EMPLOYMENT. Participation in the Plan
does not constitute a guarantee or contract of employment with the employee's
Participant Employer. Such participation shall in no way interfere with any
rights the Participating Employer would have in the absence of such
participation to determine the duration of the employee's employment with the
Participating Employer.
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<PAGE>
ARTICLE VI
PENSION BENEFITS
Sec. 6.1 PENSION ON NORMAL RETIREMENT. On Normal Retirement a
Participant shall be entitled to a pension payable monthly for life, the first
payment to be made as of the first day of the month following his Normal
Retirement (if he is living on said first day of the month) and the last payment
to be made as of the first day of the month in which his death occurs, in a
monthly amount equal to his Accrued Monthly Pension. The pension payable under
this section is subject to all the provisions of the Plan, and in this regard
special reference is to be made to the provisions of Articles VI, VII, and VIII.
Sec. 6.2 PENSION ON EARLY RETIREMENT. On Early Retirement, a
Participant shall be entitled to a pension payable monthly for life, the first
payment to be made on the first day of the month following his Normal Retirement
Date (if he is living on said first day of the month) and the last payment to be
made as of the first day of the month in which his death occurs, in a monthly
amount equal to his Accrued Monthly Pension. However, he may elect a monthly
pension which is in lieu of the aforesaid pension, the first payment to be made
as of the first day of any month he shall elect which is after his Early
Retirement and prior to his Normal Retirement Date (if he is living on the
commencement date so elected) and the last payment to be made as of the first
day of the month in which his death occurs, subject to the following:
(a) The monthly amount of said pension shall be equal to his Accrued
Monthly Pension, multiplied by the earlier retirement factor
determined from the table set forth below according to the
Participant's age when payments commence:
Attained Age on Due Date Early
of First Monthly Payment Retirement Factor
------------------------ -----------------
64 98%
63 96%
62 94%
61 90%
60 86%
59 82%
58 78%
57 74%
56 70%
55 66%
(A proportionate intermediary percentage will be applied for each
completed month after the given age is attained.)
(b) In addition, with each monthly payment prior to his Normal
Retirement Date the Participant shall receive a supplemental benefit
equal to (i) 50% of his Primary Social Security Benefit, multiplied
by (ii) the fraction described in Sec. 4.5(b), multiplied by (iii)
the early retirement factor determined from the table set forth
above according to the Participant's age when payments commence.
The pension payable under this section is subject to all the provisions of the
Plan, and in this regard special reference is to be made to the provisions of
Articles VI, VII, and VIII.
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<PAGE>
Sec. 6.3 PENSION ON DISABILITY RETIREMENT. On Disability
Retirement, a Participant shall be entitled to a pension payable monthly for
life, the first payment to be made as of the first day of the month following
his Termination of Employment, if he is then living, and the last as of the
first day of the month in which his death occurs. The monthly amount of said
pension shall be determined as follows:
(a) If the Participant has attained age 55 when his Disability
Retirement occurs, the monthly amount of his Disability Retirement
pension shall be determined in the same manner as an Early
Retirement pension under Sec. 6.2.
(b) If the Participant's Disability Retirement occurs prior to the date
he attains age 55, the monthly amount of his pension shall be the
product of (1) and (2), reduced as provided in (3):
(1) The monthly amount determined according to the formula
contained in Sec. 4.5, based on the Years of Credited Service
the Participant would have completed if his employment as a
Qualified Employee had continued until his Normal Retirement
Date, multiplied by
(2) His Service Ratio, and
(3) The amount determined in (1) and (2) shall be reduced at the
rate of 6 2/3% for each of the first five years and at the
rate of 3 1/3% for each additional year by which the
commencement date precedes his Normal Retirement Date.
The pension payable under this section is subject to all the provisions of the
Plan, and in this regard special reference is to be made to the provisions of
Articles VI, VII, and VIII.
Sec. 6.4 PENSION ON VESTED TERMINATION. On a Vested
Termination, a Participant shall be entitled to a pension payable monthly for
life, the first payment to be made as of the first day of the month next
following his Normal Retirement Date, if he is then living, and the last as of
the first day of the month in which his death occurs. The monthly amount of
said pension shall equal:
(a) The monthly amount determined according to the formula contained in
Sec. 4.5, based on the years of Credited Service the Participant
would have completed if his employment as a Qualified Employee had
continued until his Normal Retirement Date, multiplied by
(b) His Service Ratio.
However, if the Participant has completed 10 years of Elapsed Time, he may elect
to receive a monthly pension which is in lieu of the aforesaid pension, the
first payment to be made as of the first day of any month he elects which is
after the month in which he attains age 55 but not later than the first day of
the month after his Normal Retirement Date (if he is living on the commencement
date so elected) and the last payment to be made as of the first day of the
month in which his death occurs. The monthly amount of such pension shall be
the monthly amount otherwise payable following his Normal Retirement Date
reduced at the rate of 6 2/3% for each of the first five years and at the rate
of 3 1/3% for each additional year by which the commencement date precedes his
Normal Retirement Date. The election shall be made by
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requesting the appropriate form from the Company and completing, signing, and
filing the form with the Company before the commencement date elected. If the
Participant has fewer than 10 years of Elapsed Time, he may not elect to have
his pension commence prior to his Normal Retirement Date.
The pension payable under this section is subject to all the provisions of the
Plan, and in this regard special reference is to be made to the provisions of
Articles VI, VII, and VIII.
Sec. 6.5 DEDUCTION FOR OTHER PENSION PAYMENTS. Notwithstanding
the foregoing provisions, the monthly amounts otherwise payable thereunder shall
be reduced by the amount (expressed on a comparable basis that is an Actuarial
Equivalent) of the monthly pension, if any, to which the Participant is entitled
under any other pension plan that meets the requirements of Code section 401(a),
or any comparable section or sections of any future legislation that amends,
supplements, or supersedes said section, and that is financed in whole or in
part by a Participating Employer but only to the extent such other pension is
attributable to employer contributions and to the same period of service for
which the pension is being paid under this Plan. In cases where service outside
the United States is recognized as Credited Service under this Plan, said
reduction also shall apply with respect to any benefits a Participant accrued
under a retirement plan financed in whole or in part by a Participating Employer
or Affiliate outside the U.S. for the benefit of employees working outside the
U.S.
Sec. 6.6 AMENDMENTS AFFECTING PENSION RIGHTS. Notwithstanding
the foregoing provisions, in the event of an amendment to the Plan, the
following shall be applicable:
(a) The amendment shall not reduce the accrued benefit, within the
meaning of Code section 411(d)(6), of a Participant determined at
the time of such amendment except in conformity with said section.
(b) If the amendment to the Plan should change the vesting schedule of
the Plan, each Participant having not less than three Years of
Vesting Service by the end of the election period with respect to
such amendment shall be permitted within such election period to
elect in writing to have his vested percentage computed under the
Plan without regard to such amendment. The election period shall be
a reasonable period determined by the Company commencing not later
than the date the amendment is adopted. However, the Company need
not provide such an election for any Participant whose vested
percentage under the Plan, as amended, at any time cannot be less
than such percentage determined without regard to such amendment.
Sec. 6.7 SUSPENSION OF BENEFITS AND EFFECT OF REEMPLOYMENT. If
a Participant has a Termination of Employment and is subsequently reemployed by
a Participating Employer, or if a Participant's employment with a Participating
Employer continues after he attains Normal Retirement Age, the following shall
be applicable:
(a) If a Participant is reemployed by a Participating Employer, his
pension payments shall continue through the sixth month of such
reemployment. After said month and prior to the month following his
subsequent Termination of Employment, pension payments that the
Participant would otherwise be entitled to receive for the following
calendar months shall be permanently withheld:
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(1) Each calendar month ending on or before the Participant's
Normal Retirement Date in which he completes one or more Hours
of Service.
(2) Each calendar month ending after the Participant's Normal
Retirement Date in which he completes 40 or more Hours of
Service.
(b) If a Participant's employment with a Participating Employer
continues after his Normal Retirement Date, his pension payments
will be permanently withheld for each calendar month in which he
completes 40 or more Hours of Service. However, pension payments
must commence not later than the date provided in Sec. 8.1(b).
(c) If a monthly pension payment is made for a calendar month and it
later is determined that such payment was subject to permanent
withholding, the amount of such payment shall be applied as an
offset against subsequent monthly payments unless the Participant
has previously repaid the overpayment. However, the amount of any
such offset shall not exceed, in any one month after the Participant
attains Normal Retirement Age, 25 percent of the monthly total
benefit payment that would have been paid but for the offset.
(d) The Company shall notify a Participant of any suspension under
subsection (a)(2) or (b). The notice shall conform to the
requirements of Section 2530.203-3(b)(4) of the Department of Labor
Regulations.
(e) When a Participant's benefit payments resume following any period of
suspension under subsection (a), the pension to which he is entitled
under the Plan shall be paid under the same form as previously in
effect and shall be in a monthly amount equal to the sum of (i) the
monthly amount payable prior to the suspension plus (ii) any
additional amount based on his service during the period of
reemployment. However, notwithstanding any other provision of the
Plan to the contrary, no additional amount will be accrued for any
Plan Year during the period of reemployment prior to the earliest
Plan Year therein during which the Participant completes 1000 or
more Hours of Service.
(f) "Hour of Service" for purposes of this section is as defined in
Sections 2530.200b-2(a)(1) and (2) of the Labor Department
regulations.
(g) The provisions of this section shall be administered in accordance
with section 2530.203-3 of the Department of Labor Regulations.
Sec. 6.8 FAMILY INCOME COVERAGE. Section 12.04 of the Plan as
in effect on December 31, 1968, relating to continuation of family income
coverage comparable to that provided under the S&RIP prior to 1962, shall be
deemed to continue in effect for Participants who had elected to continue such
coverage. However, for purposes of all other provisions of the Plan as set
forth herein, contributions made by a Participant and benefits paid to his
Beneficiary in connection with said family income coverage shall be deemed to be
unrelated to this Plan.
Sec. 6.9 EFFECT OF PARTICIPATION IN VARIABLE ANNUITY FUND PRIOR
TO JANUARY 1, 1969. Pursuant to Article 9 of the Plan as in effect prior to the
revision of the Plan effective January 1, 1969, members could elect to have a
portion of their accrued benefits funded through a "Variable Annuity Fund."
Effective as of January 1, 1969, said elections were no longer effective and
said Variable Annuity Fund was discontinued with respect to Participants
hereunder. However,
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a Participant in the Plan on or after January 1, 1969 who made such election
under the prior provisions of the Plan shall be deemed to have made a
contribution in support of the Plan on December 31, 1968 in an amount equal to
the increase in value as of that date of all contributions on his behalf that
were allocated to said Variable Annuity Fund, to the extent such increase is
attributable to the investment experience of the Variable Annuity Fund in excess
of the assumed yield rate for said Variable Annuity Fund. The Actuary shall
determine the amount to be so credited to each such Participant as of
December 31, 1968 in a manner consistent with the provisions of said Article 9
of the Plan as previously in effect.
At such time as a Participant who made such an election under the
prior provisions of the Plan becomes entitled to a benefit under the foregoing
provisions of this Article VI, he shall be entitled to a supplemental benefit,
which shall be in the same form as the benefit under said provisions. Said
supplemental benefit shall be the Actuarial Equivalent of the amount deemed to
be an employee contribution pursuant to the preceding paragraph, together with
Accumulated Interest from the year 1968.
Sec. 6.10 PRESERVATION OF BENEFITS UNDER PRE-1972 FORMULA. The
pension payable to any person who became a Participant on or before January 1,
1972 shall not be less than the amount provided under Article XV of the Plan as
in effect on December 31, 1988.
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ARTICLE VII
SURVIVOR'S BENEFITS
Sec. 7.1 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY. A Qualified
Preretirement Survivor Annuity shall be payable to a Participant's surviving
qualified spouse following the Participant's death, subject to the following:
(a) A Qualified Preretirement Survivor Annuity shall be payable only if
all of the following conditions are satisfied:
(1) Immediately prior to the Participant's death he had a
nonforfeitable right to a pension under the Plan.
(2) The Participant's death occurred before the due date of his
first pension payment.
(3) The Participant is survived by a qualified spouse. A person is
a "qualified spouse" of a Participant if, and only if, such
person and the Participant have been married to each other
throughout the one-year period ending on the date of the
Participant's death.
(4) The Participant had Elapsed Time on or after August 23, 1984.
(5) No waiver of the Qualified Preretirement Survivor Annuity is
in effect under subsection (e).
(b) If the Participant's death occurs on or after the earliest
retirement date, the Qualified Preretirement Survivor Annuity shall
be the same as the annuity that would have been payable to the
Participant's qualified spouse if the Participant had retired with a
benefit commencing immediately prior to the date of death in a form
determined under subsection (d).
(c) If the Participant's death occurs before the earliest retirement
date, the Qualified Preretirement Survivor Annuity shall be the same
as the annuity that would have been payable to the Participant's
qualified spouse under the following circumstances:
(1) The Participant's Termination of Employment occurred on the
date of death, or on his actual date of Termination of
Employment, if earlier.
(2) The Participant survived to the earliest retirement date.
(3) The Participant commenced receiving a pension on the earliest
retirement date in a form determined under subsection (d).
(4) The Participant died on the day after the earliest retirement
date.
(d) For purposes of subsection (b) and subsection (c)(3), the applicable
form of benefit shall be a benefit payable under the option
described in Sec. 7.4(b) if the Participant's death occurs after he
has completed ten years of Elapsed Time and attained age 55 and
either (i) he was an Active Participant immediately prior to his
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death or (ii) his Termination of Employment had occurred after he
attained age 55. In all other cases, the applicable form of benefit
shall be a Qualified Joint and Survivor Annuity.
(e) A Participant may waive coverage under the Qualified Preretirement
Survivor Annuity with respect to periods described in paragraph (1).
If he does not waive such coverage, his Accrued Monthly Pension will
be reduced. The following provisions apply to such waivers and
reductions.
(1) A Participant may waive the Qualified Preretirement Survivor
Annuity with respect to periods when he is not eligible to
accrue additional benefits under this Plan or the Bemis
Company, Inc. Retirement Plan for Bemis Hourly Employees.
Said cessation of accruals may be due to the Participant's
Termination of Employment or transfer, or due to termination
of the Plan, or due to some other reason. However, he may not
waive said annuity if such accruals (i) have ceased solely due
to the Participant's reaching the maximum length of service
beyond which additional service is not recognized as Credited
Service or (ii) have ceased due to his Normal or Early
Retirement.
(2) On or about the date a Participant becomes eligible to waive
the Qualified Preretirement Survivor Annuity, the Company will
notify the Participant with regard to the election procedure
under Sec. 7.3 and the effect of said waiver.
(3) The Participant's Accrued Monthly Pension will be reduced by
25/1000 of 1% for each full month that he was eligible to
waive the Qualified Preretirement Survivor Annuity but failed
to do so. However, no such reduction will be imposed for any
month throughout which the Participant did not have a spouse
to whom he had been married for at least one year.
(f) For purposes of this section, the "earliest retirement date" with
respect to a Participant means:
(1) If the Participant has completed ten Years of Elapsed Time,
the first day of the month following the month he attains (or
would have attained) age 55.
(2) If the Participant has completed less than ten years of
Elapsed Time, the first day of the month following the month
he attains (or would have attained) age 65.
Sec. 7.2 QUALIFIED JOINT AND SURVIVOR ANNUITY. Notwithstanding
the provisions of Article VI, a pension otherwise payable to a Participant for
his life only shall instead be paid in the form of a Qualified Joint and
Survivor Annuity unless the Participant elects otherwise, subject to all of the
following:
(a) A "Qualified Joint and Survivor Annuity" is a pension commencing at
the same time as the life-only pension would commence, with monthly
payments for the life of the Participant, and, if the Participant
dies after the date for commencement of his pension payments, with
monthly payments for the life of the spouse of the Participant after
the Participant's death which are each one-half the amount of the
monthly payment made to the Participant during his lifetime.
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(b) The Company, within a reasonable period of time before the due date
for the Participant's first pension payment (and consistent with
such regulations as the Secretary of the Treasury may prescribe),
shall furnish the Participant with a written explanation of (i) the
Qualified Joint and Survivor Annuity, (ii) the election and
revocation procedures in Sec. 7.3, and (iii) the effect of an
election or revocation.
(c) A Participant who elects not to receive his pension in the form of a
Qualified Joint and Survivor Annuity will receive a pension for his
life only unless he elects an optional settlement under Sec. 7.4.
(d) The provisions of this section shall not be applicable unless the
Participant and his spouse are married to each other on the due date
for the first pension payment to the Participant. References to
"spouse" in this section are to such spouse.
(e) The benefit, if any, payable under Sec. 6.2(b) is not payable as a
Qualified Joint and Survivor Annuity.
Sec. 7.3 ELECTION PROCEDURE. Elections under Sec. 7.1 and Sec.
7.2 are subject to the following requirements:
(a) The "election period" for waiver of the Qualified Preretirement
Survivor Annuity begins on the earlier of (i) the first day of the
Plan Year in which the Participant attains age 35 or (ii) the date
of the Participant's Termination of Employment and ends on the date
of his death. The "election period" for the Qualified Joint and
Survivor Annuity is the 90 day period ending on the due date of the
Participant's first pension payment.
(b) An election under Sec. 7.1 or Sec. 7.2 may be revoked in writing
during the election period, and after such revocation another
written election may be made during the election period.
(c) All elections and revocations shall be made on the appropriate form
available from the Company and shall be effective only upon
completing, signing, and filing of the form with the Company during
the election period.
(d) A Participant's election to waive the Qualified Joint and Survivor
Annuity or Qualified Preretirement Survivor Annuity shall not take
effect unless all of the following conditions are satisfied:
(1) The Participant's spouse consents in writing to the election.
(2) If the election pertains to a Qualified Joint and Survivor
Annuity, the Participant's election designates a specific form
of benefit payment (i.e., life annuity or an optional form of
settlement under Sec. 7.4) and a specific beneficiary or
contingent annuitant, if applicable in connection with such
form of benefit payment, which designations may not be changed
without further spousal consent (unless the spouse's initial
consent expressly permits future designations by the
Participant without any further spousal consent.)
(3) The spouse's consent acknowledges the effect of the
Participant's election.
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(4) The spouse's consent is witnessed by a Plan representative or
notary public.
However, the above requirements will be deemed to be satisfied if it
is established to the satisfaction of a Plan representative that the
spouse's consent may not be obtained because there is no spouse,
because the spouse cannot be located, or because of such other
circumstances as the Secretary of the Treasury may by regulations
prescribe. Any consent by a spouse, or establishment that the
consent of a spouse may not be obtained, shall be effective only
with respect to such spouse. A consent by a spouse is not revocable
by that spouse.
Sec. 7.4 OPTIONAL SETTLEMENTS. In lieu of the amount and form
of pension payable under the preceding sections of this Article, a Participant
with respect to whom the Qualified Preretirement Survivor Annuity under Sec. 7.1
or the Qualified Joint and Survivor Annuity under Sec. 7.2 is not payable may,
under such rules and regulations as the Company may prescribe which are in
accord with the advice of the Actuary, elect to have a pension which is the
Actuarial Equivalent of his life-only pension payable under one of the following
options:
(a) An option providing a reduced monthly pension payable to the
Participant commencing on the same date as that upon which payments
would otherwise commence and terminating with the last monthly
payment before his death. If his death occurs on or after the due
date of the first monthly payment under the option and before 120
monthly payments have been made to him, such benefit shall be
continued to his Beneficiary until a total of 120 monthly payments
have been made to him and his Beneficiary.
(b) An option providing a reduced monthly pension payable to the
Participant for his lifetime commencing on the same date as that
upon which payments would otherwise commence, with provision for
continuance upon his death of monthly payments of 100% of such
reduced amount to his spouse for life if she survives him. (The
"spouse" referred to in the preceding sentence is the spouse to whom
the Participant was named on the date his pension commenced.)
(c) An option providing a reduced monthly pension payable to the
Participant for his lifetime commencing on the same date as that
upon which payments would otherwise commence, with provision for
continuance upon his death of monthly payments of 100%, 75% or 50%
of such reduced amount, as he shall have designated, to the person
designated by him as his joint annuitant, if such joint annuitant
survives him, with such monthly payments to continue for the
lifetime of the joint annuitant. An election of this option shall
be automatically cancelled if either the person electing the option
or his joint annuitant dies before the due date of the first monthly
payment under the option.
Election of an option may be made at any time prior to commencement of pension
payments.
Sec. 7.5 OTHER DEATH BENEFITS. Upon the death of a Participant,
his Beneficiary shall be entitled to receive a single sum payment equal to the
amount by which the total amount of benefit payments hereunder, if any,
theretofore paid to the deceased (including payments to his spouse under Sec.
7.1) is less than the sum of (i) the cash value as of the surrender date in 1962
of any contracts on his life originally purchased under the S&RIP and
subsequently surrendered to the insurance carrier by the trustees of said plan,
with Accumulated Interest thereon, and (ii) the contributions made by him after
1961 (including any amount deemed to have been
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contributed by him pursuant to Sec. 6.7 of the Plan as in effect on December 31,
1975) and prior to the cessation of contributions, with Accumulated Interest;
subject to the following:
(a) If a benefit is payable with respect to the Participant pursuant to
Sec. 7.2 or Sec. 7.4, this section shall not be applicable and all
death benefits, if any, shall be payable under the terms of
whichever of said sections is applicable.
(b) If a benefit is payable to the Participant's spouse pursuant to Sec.
7.1, the benefit, if any, payable pursuant to this section shall be
determined and paid after the death of said spouse.
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ARTICLE VIII
MISCELLANEOUS BENEFIT PROVISIONS
Sec. 8.1 COMMENCEMENT DATE FOR PENSION PAYMENTS. Pension
payments under this Plan shall be subject to the following rules:
(a) Pension payments shall commence at the earlier of the times
specified in paragraph (1) or (2) as follows:
(1) As soon as administratively feasible after the date specified
by the applicable Plan provision for the commencement of
pension payments.
(2) The 60th day after the close of the Plan Year in which the
Participant reaches age 65 or has a Termination of Employment,
whichever is later; provided, however, that if the amount of
the payment to be made cannot be determined by the later of
said dates, a payment retroactive to such date may be made no
later than 60 days after the earliest date on which the amount
of such payment can be ascertained.
(b) However, pension payments must commence no later than April 1 of the
calendar year following the calendar year in which the Participant
attains age 70 1/2, subject to the following:
(1) If the Participant attained age 70 1/2 prior to January 1,
1988, his pension payments are not required to commence until
the first day of the month following his Termination of
Employment.
(2) If the Participant attained age 70 1/2 during 1988, his
pension payments are not required to commence until April 1,
1990.
(c) For purposes of determining the amount of the monthly pension
payments to a Participant who will receive pension payments while he
continues to be employed by a Participating Employer, the
calculation of the initial pension amount shall be based on the
assumption that his Termination of Employment occurred on December
31 of the Plan Year in which the Participant attains age 70 1/2.
The amount of the monthly payments in each Plan Year following the
Plan Year in which payments commence shall be adjusted to reflect
any additional benefit accrued through December 31 of the preceding
Plan Year.
Sec. 8.2 PAYMENT OF SMALL AMOUNTS AND CERTAIN CONSEQUENCES
THEREOF. If the Actuarial Equivalent present value of an individual's entire
benefit is $3,500 or less, the benefit shall be paid in a single lump sum as
soon as administratively feasible following the Participant's Termination of
Employment, subject to the following:
(a) Service performed by the Participant with respect to which a lump
sum distribution of his entire accrued benefit was made shall be
disregarded in determining his Years of Credited Service under the
Plan if he is reemployed, provided such distribution was made not
later than the close of the second Plan Year following the Plan Year
in which his Termination of Employment occurred.
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(b) If the requirements of subsection (a) are not met, and the
Participant is later reemployed, his Accrued Monthly Pension upon
termination of said period of reemployment will be reduced by the
amount of Accrued Monthly Pension that was cashed out under the
foregoing provisions of this section.
(c) A lump sum distribution will not be paid to a Participant under this
section if his Termination of Employment was a Normal Retirement (as
defined in Sec. 4.1), an Early Retirement (as defined in Sec. 4.2),
or a Disability Retirement (as defined in Sec. 4.3). However, if
such a Participant later dies under circumstances such that a death
benefit is payable under the Plan, the death benefit will be cashed
out under this section if the present value thereof is $3500 or
less.
(d) If a former employee receives a single sum payment under the
foregoing provisions of this section, and he is later rehired by a
Participating Employer, he may repay to the Fund the full amount of
the single sum distribution and interest thereon, subject to the
following:
(1) Interest shall be computed on the amount of the distribution
from the date of such distribution to the date of repayment,
compounded annually, at the rate of five percent per annum.
(2) The repayment must be made not later than the last day of the
second Plan Year following the Plan Year in which the
individual is rehired.
(3) If such a repayment is made, the reduction of Credited Service
referred to in (a) above and the reduction of Accrued Monthly
Pension referred to in (b) above will not be applicable.
Sec. 8.3 NO OTHER BENEFITS. No benefits other than those
specifically provided for herein are to be provided under the Plan.
Sec. 8.4 SOURCE OF BENEFITS. All benefits to which persons
become entitled hereunder shall be provided only out of the Fund and only to the
extent that the Fund is adequate therefor. No benefits are provided under the
Plan except those expressly described herein.
Sec. 8.5 INCOMPETENT PAYEE. If in the opinion of the Company a
person entitled to payments hereunder is disabled from caring for his affairs
because of mental condition, physical condition, or age, 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 under disability 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 under disability. The Company shall have
no liability with respect to payments so made. The Company shall have no duty
to make inquiry as to the competence of any person entitled to receive payments
hereunder.
Sec. 8.6 ASSIGNMENT OR ALIENATION OF BENEFITS. Except as
otherwise expressly permitted by the Plan or required by law, the interests of
persons entitled to benefits under the Plan may not in any manner whatsoever be
assigned or alienated, whether voluntarily or involuntarily, or directly or
indirectly, subject to the following:
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(a) Once a Participant, beneficiary, or contingent annuitant begins
receiving benefits under the Plan, he may assign or alienate the
right to future benefit payments provided that the assignments or
alienations (i) are voluntary and revocable, (ii) do not in the
aggregate exceed 10% of any benefit payment, and (iii) are neither
for the purpose, nor have the effect of defraying plan
administration costs.
(b) An arrangement whereby a Participant, beneficiary, or contingent
annuitant directs the Plan to pay all or any portion of a Plan
benefit to a third party (including but not limited to a
Participating Employer) will not constitute an "assignment or
alienation" for purposes of this section if (i) it is revocable at
any time by the Participant, beneficiary, or contingent annuitant,
and (ii) the third party files a written acknowledgement with the
Company stating that the third party has no enforceable right in, or
to, any plan benefit payment or portion thereof (except to the
extent of payments actually received pursuant to the arrangement).
The written acknowledgement must be filed with the Company not later
than 90 days after the arrangement is entered into.
(c) The Plan shall comply with the provisions of any court order which
the Company determines is a qualified domestic relations order as
defined in Code section 414(p). Where payments are to be made under
a qualified domestic relations order before payments commence to the
Participant, the present value of the benefits actually accrued for
the Participant shall be determined on an Actuarial Equivalent
basis. All benefits otherwise payable under the Plan with respect
to a Participant shall be adjusted to the extent necessary to comply
with a qualified domestic relations order. The Company may defer
pension payments subject to a domestic relations order pending
determination that the order is qualified.
Sec. 8.7 PAYMENT OF TAXES. The Funding Agency may pay any
estate, inheritance, income, or other tax, charge, or assessment attributable to
any benefit payable hereunder which in the Funding Agency's opinion it shall be
or may be required to pay out of such benefit. The Funding Agency may require,
before making any payment, such release or other document from any taxing
authority and such indemnity from the intended payee as the Funding Agency shall
deem necessary for its protection.
Sec. 8.8 CONDITIONS PRECEDENT. No person shall be entitled to a
benefit hereunder until his right thereto has finally been determined by the
Company or until he has submitted to the Company relevant data reasonably
requested by the Company, including, but not limited to, proof of birth or
death.
Sec. 8.9 COMPANY DIRECTIONS TO FUNDING AGENCY. The Company
shall issue such written directions to the Funding Agency as are necessary to
accomplish distributions to the Participants and Beneficiaries in accordance
with the provisions of the Plan.
Sec. 8.10 BENEFITS NOT INCREASED BY ACTUARIAL GAINS. Forfeitures
arising from severance of employment, death, or for any other reason shall not
be applied to increase the benefits that any person would otherwise receive
under the Plan.
Sec. 8.11 PENSIONS NOT DECREASED ON ACCOUNT OF CERTAIN SOCIAL
SECURITY INCREASES. Notwithstanding any provisions of the Plan to the contrary,
if a Participant has a Termination of Employment and does not subsequently again
become eligible to accrue benefits under the Plan, any pension to which he or
his beneficiary is entitled under the Plan shall not be
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decreased by reason of any post-Termination of Employment social security
increase effective after his Termination of Employment. If a Participant has a
Termination of Employment and subsequently again becomes eligible to accrue
benefits under the Plan, no post-Termination of Employment social security
benefit increase effective before he again becomes eligible to accrue benefits
under the Plan shall be applied to reduce his pension under the Plan to less
than the pension to which he would have been entitled had he not again become
eligible to accrue benefits under the Plan. For purposes of this section,
"post-Termination of Employment social security benefit increase" means an
increase in a benefit level or wage base under Title II of the Social Security
Act occurring after the later of (i) the Participant's Termination of Employment
or (ii) September 2, 1974.
Sec. 8.12 MAXIMUM LIMITATIONS ON BENEFITS. Notwithstanding any
provision of the Plan to the contrary, a Participant's benefit under the Plan
shall not exceed the maximum amount permitted under Code section 415. For
purposes of the preceding sentence:
(a) The projected annual pension for any Plan Year with respect to a
Participant whose benefit has not yet commenced, and the annual
pension paid during any Plan Year to a Participant whose benefit has
commenced, may not exceed the lesser of:
(1) $90,000. This amount shall be automatically adjusted to
reflect the cost of living adjustment factor under Code
section 415(d). However, if a former employee receives a
single sum payment from his employer of the Actuarial
Equivalent of his benefit in excess of the limits under this
section, such adjustment will not have the effect of
increasing his benefit under this Plan to an amount higher
than the amount upon which said single sum payment was
predicated.
(2) 100% of the Participant's average Compensation for his high
three consecutive years of employment.
(b) If a Participant's benefit is paid in any form other than a straight
life annuity or a qualified joint and survivor annuity (as defined
in Code section 417(b)), such benefit shall be converted on an
Actuarial Equivalent basis to a straight life annuity beginning at
the same age for purposes of applying the limitation in
subsection (a).
(c) If a Participant's benefit commences before he attains Social
Security Retirement Age and on or after the date he attains age 62,
the dollar limitation of subsection (a)(1) shall be reduced by
5/9 of 1% for each of the first 36 months and 5/12 of 1% for each
additional month (up to 24 months) by which benefits commence before
he attains Social Security Retirement Age. If the Participant's
benefit commences before he attains age 62, the dollar limitation
shall be the annual amount of a benefit (commencing when the
Participant's benefit commences) which is the Actuarial Equivalent
of an annual benefit commencing at age 62 determined according to
the preceding sentence.
(d) If the Participant's benefit commences after he attains Social
Security Retirement Age, the dollar limitation of subsection (a)(1)
shall be increased so that such limitation (as so increased) equals
the annual amount of a benefit (commencing when the Participant's
benefit commences) which is the Actuarial Equivalent of a benefit
commencing at Social Security Retirement Age in an annual amount
determined under subsection (a)(1).
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(e) If a Participant has less than ten years of participation in this
Plan, the dollar limitation under subsection (a)(1) shall be reduced
by multiplying that amount by a fraction, the numerator of which is
the number of years (or part thereof) of participation (not to
exceed ten and not to be less than one) in this Plan and the
denominator of which is ten.
(f) If a Participant has less than ten years of service with the
employer, the limitation referred to in subsection (a)(2) shall be
reduced by multiplying the limitation otherwise applicable by a
fraction, the numerator of which is the number of years (or part
thereof) of service (not to exceed ten and not to be less than one)
with the employer and the denominator of which is ten.
(g) For purposes of this section, "Social Security Retirement Age" means
retirement age as defined in section 216(l) of the Social Security
Act (or any successor thereto).
(h) With respect to a Participant who was a Participant prior to
January 1, 1987, the limitation under this section shall not have
the effect of reducing the Participant's annual benefit to less
than his accrued benefit as of the close of the last Plan Year
beginning before January 1, 1987. In determining the amount of the
Participant's annual accrued benefit on such date, any change in the
terms and conditions of the Plan and any cost of living adjustment
occurring after May 5, 1986 shall be disregarded.
(i) If a Participant is or has been covered under more than one defined
benefit plan maintained by his Participating Employer or an
Affiliate, the sum of the Participant's annual benefits under all
such plans may not exceed the maximum amount permitted under this
section. To the extend necessary to comply with such limitation,
the benefits under all such plans shall be reduced on a pro rata
basis.
(j) If the Participant is also a participant in one or more defined
contribution plans maintained by his Participating Employer or an
Affiliate, the sum of the Participant's defined benefit plan
fraction and defined contribution plan fraction, determined
according to Code section 415(e), for any Plan Year may not exceed
1.0. In calculating the defined contribution plan fraction for a
plan in existence on July 1, 1982, the Company may elect to apply
the transition rule described in Code section 415(e)(6) for Plan
Years ending after December 31, 1982. If the sum of a Participant's
defined benefit fraction and defined contribution fraction would
otherwise exceed 1.0 for any Plan Year, the benefit otherwise
payable under this Plan shall be adjusted to the extent necessary to
reduce the sum of such fractions to 1.0.
(k) For purposes of this section, "Compensation" means a Participant's
earned income, wages, salaries, and fees for professional services
and other amounts received for personal services actually rendered
in the course of employment with the Participating Employers and
Affiliates (including, but not limited to, commissions, compensation
for services on the basis of a percentage of profits and bonuses),
subject to the following:
(1) Compensation excludes employer contributions to a plan of
deferred compensation which are not includable in the
Participant's gross income for the taxable year in which
contributed, any distributions from a plan of
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deferred compensation, and any other amounts which receive
special tax benefits. However, any amounts received by an
employee pursuant to an unfunded non-qualified plan of
deferred compensation are Compensation in the year such
amounts are includable in the employee's gross income.
(2) Compensation excludes amounts realized from the exercise of a
nonqualified stock option, or from the disposition of stock
acquired under an incentive stock option, or when restricted
stock (or property) held by the Participant either becomes
transferable or is no longer subject to a substantial risk of
forfeiture.
(3) Compensation recognized for an employee for a Plan Year shall
not exceed $150,000, adjusted for each Plan Year after 1994 to
take into account any applicable cost of living increase
prescribed by the Secretary of the Treasury.
Sec. 8.13 DISTRIBUTIONS MADE IN ACCORDANCE WITH CODE SECTION
401(a)(9). Distributions hereunder shall be made in accordance with the
requirements of Code Section 401(a)(9) and regulations thereunder, including
Treasury Regulation Section 1.401(a)(9)-2. Any provisions of the Plan that are
inconsistent with Code section 401(a)(9) and the regulations thereunder shall be
deemed inoperative.
Sec. 8.14 DEEMED CASH-OUT UPON TERMINATION OF EMPLOYMENT FOR
UNVESTED PARTICIPANTS. A Participant who is zero percent vested and experiences
a Termination of Employment is deemed upon his or her Termination of Employment
to hae received an immediate cash-out of his or her Accrued Monthly Pension
under the Plan and to have forfeited the unvested portion of his or her Accrued
Monthly Pension under the Plan.
Sec. 8.15 ROLLOVERS AND TRANSFERS TO OTHER QUALIFIED PLANS. This
section applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a distributee's election under this section, a distributee may elect, at
the time and in the manner prescribed by the Company, to have any portion of an
eligible rollover distribution paid directly to an eligible retirement plan
specified by the distributee. The following definitions shall be used in
administering the provisions of this section.
(a) ELIGIBLE ROLLOVER DISTRIBUTION: For purposes of this section, an
eligible rollover distribution is a distribution paid in a single
lump sum pursuant to Sec. 8.2 or pursuant to any Appendix to the
Plan.
(b) ELIGIBLE RETIREMENT PLAN: An eligible retirement plan is an
individual retirement account described in Code section 408(a), an
individual retirement annuity described in Code section 408(b), an
annuity plan described in Code section 403(a), or a qualified trust
described in Code section 401(a), that accepts the distributee's
eligible rollover distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an eligible
retirement plan is limited to an individual retirement account or
individual retirement annuity.
(c) DISTRIBUTEE: A distributee means a Participant, a Participant's
surviving spouse, or a former spouse who is the alternate payee
under a qualified domestic relations order, as defined in Code
section 414(p). Individuals other than those named in this
subsection are not permitted to roll over distributions from the
Plan.
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Sec. 8.16 SPECIAL BENEFIT LIMITATION. Notwithstanding any other
provision of the Plan to the contrary, the payment of benefits under the
conditions set forth in this section shall be limited as follows:
(a) Upon termination of the Plan, the benefit of any Participant who is
either a "highly compensated employee" or a "highly compensated
former employee" shall be limited to a benefit that is
nondiscriminatory under Code Section 401(a)(4).
(b) The annual benefit payable under the Plan to any Participant
described in subsection (c) of this section shall not exceed an
amount equal to the payments which would be made to him in that year
under a straight life annuity that is the Actuarial Equivalent of
the nonforfeitable benefit to which he is entitled under the Plan;
provided that the restrictions set forth in this subsection (b)
shall not apply if:
(1) after payment to the Participant of his benefit under the
Plan, the value of the Plan's assets equals or exceeds 110% of
the value of the Plan's current liabilities, or
(2) the value of such Participant's benefit under the Plan is less
than 1% of the value of such current liabilities.
(c) The restriction set forth in subsection (b) shall apply to benefits
payable under the Plan for any Plan Year to any Participant who is
either a "highly compensated employee" or "highly compensated former
employee" with respect to such Plan Year; provided, that if the
number of such highly compensated employees and highly compensated
former employees for any Plan Year exceeds 25, the restriction set
forth in subsection (b) shall apply for the Plan Year only to the 25
such highly compensated employees and highly compensated former
employees with the greatest Compensation (as defined in
Sec. 8.12(k)) for the current or any prior Plan Year.
(d) For purposes of this section, the terms "highly compensated
employee" and "highly compensated former employee" shall have the
meanings ascribed to such terms in Code Sections 414(q)(1) and
414(q)(9), respectively.
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ARTICLE IX
FUND
Sec. 9.1 COMPOSITION. All sums of money and all securities and
other property received by the Funding Agency for purposes of the Plan, together
with all investment made therewith, the proceeds thereof, and all earnings and
accumulations thereon, and the part from time to time remaining shall constitute
the "Fund". The Company may cause the Fund to be divided into any number of
parts for investment purposes or any other purposes necessary or advisable for
the proper administration of the Plan. If for any purpose it is necessary to
determine the value of an asset in the Fund for which fair market value is not
available, the value of such asset shall be its fair value as determined in good
faith by the Company or other Named Fiduciary assigned such function, or if the
asset is held in trust and the trust agreement so provides, as determined in
good faith by the trustee.
Sec. 9.2 FUNDING AGENCY. The Fund may be held and invested as
one fund or may be divided into any number of parts for investment purposes.
Each part of the Fund, or the entire Fund if it is not divided into parts for
investment purposes, shall be held and invested by one or more trustees or by an
insurance company. The trustee or trustees or the insurance company so acting
with respect to any part of the Fund is referred to herein as the Funding Agency
with respect to such part of the Fund. The selection and appointment of each
Funding Agency shall be made by the Company, by action of the Board. The
Company, by action of the Board, shall have the right at any time to remove a
Funding Agency and appoint a successor thereto, subject only to the terms of any
applicable trust agreement or group annuity contract. The Company shall have
the right to determine the form and substance of each trust agreement and group
annuity contract under which any part of the Fund is held, subject only to the
requirement that they are not inconsistent with the provisions of the Plan. Any
such trust agreement may contain provisions pursuant to which the trustee will
make investments on direction of a third party.
Sec. 9.3 COMPENSATION AND EXPENSES OF FUNDING AGENCY. The
Funding Agency shall be entitled to receive reasonable compensation for its
services as may be agreed upon with the Company. The Funding Agency shall also
be entitled to reimbursement for all reasonable and necessary costs, expenses,
and disbursements incurred by it in the performance of its services. Such
compensation and reimbursements shall be paid from the Fund if not paid directly
by the Participating Employers in such proportions as the Company shall
determine.
Sec. 9.4 SECURITIES AND PROPERTY OF PARTICIPATING EMPLOYERS. An
agreement with a Funding Agency may provide that the Fund may be invested in
qualifying employer securities or qualifying employer real property, as those
terms are used in ERISA, and to the extent permitted by ERISA. If qualifying
employer securities or qualifying employer real property are purchased or sold
as an investment of the Fund from or to a disqualified person or party in
interest, as those terms are used in ERISA, and if there is no generally
recognized market for such securities or property, the purchase shall be for not
more than fair market value and the sale shall be for not less than fair market
value, as determined in good faith by the Company or other Named Fiduciary
assigned such function, or if such assets are held in trust and the trust
agreement so provides, as determined in good faith by the trustee.
Sec. 9.5 NO DIVERSION. The Fund shall be for the exclusive
purpose of providing benefits to Participants and their beneficiaries and
defraying reasonable expenses of administering the Plan. Such expenses may
include premiums for the bonding of Plan officials required by ERISA and may
also include premiums payable to the Pension Benefit Guaranty
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Corporation. No part of the Fund may be used for, or diverted to, purposes
other than for the exclusive benefit of employees of the Participating Employers
or their beneficiaries. Notwithstanding the foregoing:
(a) If any contribution or portion thereof is made by a Participating
Employer by a mistake of fact, the Funding Agency shall, upon
written request of the Company, return such contribution or portion
thereof to the Participating Employer within one year after the
payment of the contribution to the Funding Agency; however, earnings
attributable to such contribution or portion thereof shall not be
returned to the Participating Employer but shall remain in the Fund,
and the amount returned to the Participating Employer shall be
reduced by any losses attributable to such contribution or portion
thereof.
(b) Contributions by the Participating Employers are conditioned upon
the deductibility of each contribution under Code section 404. To
the extent the deduction is disallowed, the Funding Agency shall,
upon written request of the Company, return such contribution to the
Participating Employer within one year after the disallowance of the
deduction; however, earnings attributable to such contribution (or
disallowed portion thereof) shall not be returned to the
Participating Employer but shall remain in the Fund, and the amount
returned to the Participating Employer shall be reduced by any
losses attributable to such contribution (or disallowed portion
thereof).
(c) If, in the case of termination of the Plan, any residual assets
remain in the Fund after all liabilities of the Plan to Participants
and their beneficiaries have been satisfied, such residual assets
shall be returned to the Participating Employers in such proportions
as the Company may determine.
Sec. 9.6 EMPLOYER CONTRIBUTIONS. The Participating Employers
shall make such contributions to the Fund from time to time as they consider
advisable.
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ARTICLE X
ACTUARY
Sec. 10.1 APPOINTMENT. The Company shall appoint as Actuary
hereunder an individual who is an enrolled actuary as defined in ERISA or a
partnership, corporation, or other organization which has as a partner or
employee thereof such an enrolled actuary.
Sec. 10.2 RESPONSIBILITIES. The Actuary shall have the
responsibilities expressly allocated to it hereunder and shall have such other
responsibilities with respect to the Plan as may be agreed upon by the Company
and the Actuary.
Sec. 10.3 COMPENSATION. The Actuary shall receive such
reasonable compensation for its services hereunder as may be agreed upon by the
Company and the Actuary. To the extent not paid from the Fund, such
compensation shall be paid by the Participating Employers in such proportions as
the Company shall determine.
Sec. 10.4 RESIGNATION, REMOVAL, AND SUCCESSOR. Any agreement
between the Company and the Actuary for services hereunder may be terminated by
either party on 30 days written notice to the other. In the event of a vacancy
in the office of Actuary, the Company shall appoint a successor.
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ARTICLE XI
ADMINISTRATION OF PLAN
Sec. 11.1 ADMINISTRATION BY COMPANY. The Company is the
"administrator" of the Plan for purposes of ERISA. Except as expressly
otherwise provided herein, the Company shall control and manage the operation
and administration of the Plan and make all decisions and determinations
incident thereto. In carrying out its Plan responsibilities, the Company shall
have discretionary authority to construe the terms of the Plan. Except in cases
where the Plan expressly provides to the contrary, action on behalf of the
Company may be taken by any of the following:
(a) The Board.
(b) The chief executive officer of the Company.
(c) Any person or persons, natural or otherwise, or committee, to whom
responsibilities for the operation and administration of the Plan
are allocated by the Company, by resolution of the Board or by
written instrument executed by the chief executive officer of the
Company and filed with its permanent records, but action of such
person or persons or committee shall be within the scope of said
allocation.
Sec. 11.2 CERTAIN FIDUCIARY PROVISIONS. For purposes of the
Plan:
(a) Any person or group of persons may serve in more than one fiduciary
capacity with respect to the Plan.
(b) A Named Fiduciary, or a fiduciary designated by a Named Fiduciary
pursuant to the provisions of the Plan, may employ one or more
persons to render advice with regard to any responsibility such
fiduciary has under the Plan.
(c) To the extent permitted by any applicable trust agreement or group
annuity contract a Named Fiduciary with respect to control or
management of the assets of the Plan may appoint an investment
manager or managers, as defined in ERISA to manage (including the
power to acquire and dispose of) any assets of the Plan.
(d) At any time that the Plan has more than one Named Fiduciary, if
pursuant to the Plan provisions fiduciary responsibilities are not
already allocated among such Named Fiduciaries, the Company, by
action of the Board or chief executive officer may provide for such
allocation; except that such allocation shall not include any
responsibility, if any, in a trust agreement to manage or control
the assets of the Plan other than a power under the trust agreement
to appoint an investment manager as defined in ERISA.
(e) Unless expressly prohibited in the appointment of a Named Fiduciary
which is not the Company acting as provided in Sec. 11.1, such Named
Fiduciary by written instrument may designate a person or persons
other than such Named Fiduciary to carry out any or all of the
fiduciary responsibilities under the Plan of such Named Fiduciary;
except that such designation shall not include any responsibility,
if any, in a trust agreement to manage or control the assets of the
Plan other than a power under the trust agreement to appoint an
investment manager as defined in ERISA.
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(f) A person who is a fiduciary with respect to the Plan, including a
Named Fiduciary, shall be recognized and treated as a fiduciary only
with respect to the particular fiduciary functions as to which such
person has responsibility.
Each Named Fiduciary (other than the Company), each other fiduciary, each person
employed pursuant to subsection (b) above, and each investment manager shall be
entitled to receive reasonable compensation for services rendered, or for the
reimbursement of expenses properly and actually incurred in the performance of
their duties with the Plan and to payment therefor from the Fund if not paid
directly by the Participating Employers in such proportions as the Company shall
determine. However, no person so serving who already receives full-time pay
from a Participating Employer shall receive compensation from the Plan, except
for reimbursement of expenses properly and actually incurred.
Sec. 11.3 DISCRIMINATION PROHIBITED. No person or persons in
exercising discretion in the operation and administration of the Plan shall
discriminate in favor of highly compensated employees (as defined in Code
section 416(g)).
Sec. 11.4 EVIDENCE. Evidence required of anyone under this 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.
Sec. 11.5 CORRECTION OF ERRORS. It is recognized that in the
operation and administration of the Plan certain mathematical and accounting
errors may be made or mistakes may arise by reason of factual errors in
information supplied to the Company or Funding Agency. The Company shall have
power to cause such equitable adjustments to be made to correct for such errors
as the Company in its discretion considers appropriate. Such adjustments shall
be final and binding on all persons.
Sec. 11.6 RECORDS. Each Participating Employer, each fiduciary
with respect to the Plan, and each other person performing any functions in the
operation or administration of the Plan or the management or control of the
assets of the Plan shall keep such records as may be necessary or appropriate in
the discharge of their respective functions hereunder, including records
required by ERISA or any other applicable law. Records shall be retained as
long as necessary for the proper administration of the Plan and at least for any
period required by said Act or other applicable law.
Sec. 11.7 GENERAL FIDUCIARY STANDARD. Each fiduciary shall
discharge his duties with respect to the Plan solely in the interests of
Participants and their beneficiaries and with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims.
Sec. 11.8 PROHIBITED TRANSACTIONS. A fiduciary with respect to
the Plan shall not cause the Plan to engage in any prohibited transaction within
the meaning of ERISA.
Sec. 11.9 CLAIMS PROCEDURE. The Company shall establish a claims
procedure consistent with the requirements of ERISA. Such claims procedure
shall provide adequate notice in writing to any Participant or beneficiary whose
claim for benefits under the Plan has been denied, setting forth the specific
reasons for such denial, written in a manner calculated to be understood by the
claimant and shall afford a reasonable opportunity to a claimant whose claim for
benefits has been denied for a full and fair review by the appropriate Named
Fiduciary of the decision denying
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the claim. No person claiming a benefit under the Plan may initiate a civil
action regarding the claim until all steps under the claims procedure (including
appeals) have been completed.
Sec. 11.10 BONDING. Plan personnel shall be bonded to the extent
required by ERISA. Premiums for such bonding may, in the sole discretion of the
Company, be paid in whole or in part from the Fund. Such premiums may also be
paid in whole or in part by the Participating Employers in such proportions as
the Company shall determine. The Company may provide by agreement with any
person that the premium for required bonding shall be paid by such person.
Sec. 11.11 WAIVER OF NOTICE. Any notice required hereunder may be
waived by the person entitled thereto.
Sec. 11.12 AGENT FOR LEGAL PROCESS. The Company shall be the agent
for service of legal process with respect to any matter concerning the Plan,
unless and until the Company designates some other person as such agent.
Sec. 11.13 INDEMNIFICATION. In addition to any other applicable
provisions for indemnification, the Participating Employers jointly and
severally agree to indemnify and hold harmless, to the extent permitted by law,
each director, each officer, and each employee (collectively referred to as the
"Indemnitee") of the Participating Employers against any and all liabilities,
losses, costs, or expenses (including legal fees) of whatsoever kind and nature
which may be imposed on, incurred by, or asserted against such person at any
time by reason of such person's services as a fiduciary in connection with 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. The Company shall have the right, but not the
obligation, to select counsel and control the defense and settlement of any
action against the Indemnitee for which the Indemnitee may be entitled to
indemnification.
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ARTICLE XII
AMENDMENT, TERMINATION, MERGER
Sec. 12.1 AMENDMENT. Subject to the non-diversion provisions of
Sec. 9.5, the Company, by action of the Board, or by action of a person or
committee so authorized by resolution of the Board, may amend the Plan at any
time and from time to time. No amendment of the Plan shall have the effect of
changing the rights, duties, and liabilities of any Funding Agency without its
written consent. The Company agrees that promptly upon the adoption of any
amendment to the Plan it will furnish a copy of the amendment together with a
certificate evidencing its adoption to each Funding Agency then acting.
Sec. 12.2 DISCONTINUANCE OF JOINT PARTICIPATION IN PLAN BY A
PARTICIPATING EMPLOYER. A Participating Employer, by action of its board of
directors and on appropriate written notice to the Company and each Funding
Agency then acting, may discontinue its joint participation in the Plan with the
other Participating Employers. The Company shall cause a determination to be
made of the equitable part of the Fund assets held on account of Participants of
the withdrawing employer and their beneficiaries. The Company shall direct the
Funding Agency or Funding Agencies to transfer assets representing such
equitable part to a separate fund for the plan of the withdrawing employer;
provided, however, that such transfer shall be made only if and when the Company
in its sole judgment is satisfied that the transfer can be made in full
compliance with the applicable requirements of ERISA. Such withdrawing employer
may thereafter exercise, in respect of such separate fund, all the rights and
powers reserved to the Company with respect to the Fund. The plan of the
withdrawing employer shall, until amended by the withdrawing employer, continue
with the same terms as the Plan herein, except that with respect to the separate
plan of the withdrawing employer the words "Participating Employer',
"Participating Employers", and "Company" shall thereafter be considered to refer
only to the withdrawing employer. Any discontinuance of participation by a
Participating Employer shall be effected in such manner that each Participant or
beneficiary would (if the Plan and the plan of the withdrawing employer then
terminated) receive a benefit immediately after such discontinuance of
participation which is equal to or greater than the benefit he would have been
entitled to receive immediately before such discontinuance of participation if
the Plan had then terminated. No transfer of assets pursuant to this section
shall be effected until such statements with respect thereto, if any, required
by ERISA to be filed in advance thereof have been filed.
Sec. 12.3 REORGANIZATION OF PARTICIPATING EMPLOYERS. If two or
more Participating Employers are consolidated or merged or if one or more
Participating Employers acquire the assets of another Participating Employer,
the Plan shall be deemed to have continued, without termination and without a
complete discontinuance of contributions, as to all the Participating Employers
involved in such reorganization and their employees. In such event, in
administering the Plan, the corporation resulting from the consolidation, the
surviving corporation in the merger, or the employer acquiring the assets shall
be considered as a continuation of all of the Participating Employers involved
in the reorganization.
Sec. 12.4 TERMINATION. The Plan may be terminated by the
Company, by action of the Board. An employer which has discontinued its joint
participation in the Plan with the other Participating Employers shall also have
the right to terminate its separate plan which resulted from such discontinuance
at any time by action of its board of directors. Any such termination shall be
made in compliance with all applicable provisions of ERISA. The Plan or
separate plan may also be terminated by action of the Pension Benefit Guaranty
Corporation pursuant to the provisions of ERISA. Upon termination of the Plan,
or separate plan, the following shall be applicable:
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(a) No further benefits shall accrue under the terminated plan, and the
rights of each employee thereunder to benefits accrued to the date
of such termination, to the extent then funded, shall be
nonforfeitable; provided, however, that the sole recourse for
satisfaction of such rights shall be to the Fund and, where
applicable, to the Pension Benefit Guaranty Corporation.
(b) The Funding Agency shall receive for the Fund of the applicable
terminated plan any amount recovered under section 4045 of ERISA.
(c) The Funding Agency shall deduct from the Fund of the terminated plan
its compensation, expenses properly chargeable thereto, and any and
all taxes that may be imposed upon the Fund by virtue of the
termination of the plan or otherwise; provided, however, that the
Funding Agency may accept such reasonable indemnity therefor from
the Participating Employers as the Funding Agency shall specify.
(d) If adequate the Fund of the terminated Plan shall then be applied to
provide, in accordance with the provisions of such terminated plan
as in effect at the time of such termination, all benefits accrued
to the date of such termination whether vested or not.
(e) If the Fund of the terminated plan is not adequate to provide all
benefits accrued to the date of termination, the assets of the Fund
of the terminated plan shall be allocated to provide benefits in the
following order of priority subject to any applicable regulations
promulgated by the Pension Benefit Guaranty Corporation or the
Secretary of the Treasury:
(1) To provide that portion of each individual's accrued benefit
that is derived from the Participant's contributions to the
Fund, if any.
(2) In the case of benefits payable as an annuity:
(A) In the case of the benefit of a Participant or
beneficiary which was in pay status as of the beginning
of the 3-year period ending on the termination date of
the plan, to provide each such benefit, based on the
provisions of the plan (as in effect during the 5-year
period ending on such date) under which such benefit
would be the least. The lowest benefit in pay status
during the 3-year period shall be considered the
benefit in pay status for such period.
(B) In the case of the benefit of a Participant or
beneficiary (other than a benefit described in
subparagraph (A) above) which would have been in pay
status as of the beginning of the 3-year period ending
on the termination date of the plan if the Participant
had retired prior to the beginning of the 3-year period
and if his benefits had commenced as a life only
annuity as of the beginning of such period, to provide
each such benefit based on the provisions of the plan
(as in effect during the 5-year period ending on such
date) under which such benefit would be the least.
(3) To provide all other benefits, if any, of individuals under
the plan guaranteed under ERISA (determined without regard to
section 4022(b)(5) of said Act), and the additional benefits,
if any, which would be so provided if section
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4022(b)(6) of said Act did not apply. In determining such
benefits, section 4021 of said Act shall be applied without
regard to subsection (c) thereof.
(4) To provide all other nonforfeitable benefits under the plan.
If the assets available are not sufficient to satisfy in full
such benefits:
(A) The assets shall be allocated to provide individuals
with such benefits accrued under the plan as in effect
at the beginning of the 5-year period ending on the
date of plan termination.
(B) If the assets available for allocation under
subparagraph (A) above are sufficient to satisfy in
full the benefits described therein (without regard to
this subparagraph (B)), then for purposes of
subparagraph (A), benefits of individuals thereunder
shall be determined on the basis of the plan as amended
by the most recent plan amendment effective during such
5-year period under which the assets available for
allocation are sufficient to satisfy in full the
benefits of such individuals, and any assets remaining
to be allocated shall be allocated on the basis of the
plan as amended by the next succeeding plan amendment
effective during such period.
(5) To provide all other accrued benefits under the plan.
The amount allocated under any of paragraphs (1) through (5) above
with respect to any benefit shall be properly adjusted for any
allocation of assets with respect to that benefit under any of the
preceding of said paragraphs. Except as otherwise provided in
paragraph (4) above, if the assets available for allocation under
any of said paragraphs are insufficient to satisfy in full the
benefits to be provided individuals under such paragraph, the assets
shall be allocated pro rata among such individuals on the basis of
the present value, as of the termination date of the plan, of their
respective benefits described in such paragraph. If the Secretary
of the Treasury determines that the allocation made pursuant to this
subsection results in discrimination prohibited by Code section
401(a)(4) then, if required to prevent the disqualification of the
plan (or any trust under the plan) the assets shall be reallocated
to the extent necessary to avoid such discrimination but only to the
extent permitted by ERISA.
(f) If all liabilities of the Plan to Participants and their
beneficiaries have been satisfied, any residual assets of the Plan
shall be returned to the Participating Employers if such
distribution does not contravene any provision of law; provided,
however, that if any asset of the Plan attributable to employee
contributions should remain after all liabilities of the Plan to
Participants and their beneficiaries have been satisfied, such
assets shall be equitably distributed to the employees who made such
contributions (or their beneficiaries) in accordance with their rate
of contributions.
(g) If the Actuarial Equivalent present value of an individual's entire
benefit is $3,500 or less, the benefit shall be paid in a single sum
promptly after termination of the Plan; provided, however, that
payment may be deferred as provided in Sec. 12.7. In all other
cases, benefits following termination of the Plan shall be provided
through purchase of an annuity contract from an insurance company
offering the same settlement options and payment terms as are
provided under the Plan.
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(h) In the event of the termination of the Plan, all Plan provisions and
any agreements with Funding Agencies relating to the Plan shall
continue to have effect for the purpose of completing distributions
in accordance with this section.
Sec. 12.5 PARTIAL TERMINATION. If there is a partial termination
of the Plan, either by operation of law, by amendment of the Plan, or for any
other reason, which partial termination shall be confirmed by the Company, the
Company shall:
(a) Determine the equitable part of the Fund assets held on account of
Participants with respect to whom the Plan is terminated and their
beneficiaries as though the partial termination was a discontinuance
of joint participation in the Plan by a Participating Employer under
Sec. 12.2.
(b) Cause that portion of the Fund allocated to those Participants (and
their beneficiaries) with respect to whom the partial termination
takes place to be treated as the Fund of a terminated plan with
respect to such persons.
(c) Cause that portion of the Fund that is not allocated to those
Participants (and their beneficiaries) with respect to whom the
partial termination takes place to continue to be held and
administered under the Plan for the benefit of the other
Participants (and their beneficiaries).
The provisions of Sec. 12.4 shall be applicable to the partially terminated
plan, to the Participants (and their beneficiaries) with respect to whom the
partial termination takes place, and to the funds allocated to such persons, as
though it constituted a separate plan; provided, however, that any residual
assets shall be credited to the portion of the Fund referred to in subsection
(c) above rather than being returned to the Participating Employers.
Sec. 12.6 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS. In
the case of any merger or consolidation of the Plan with any other plan, or in
the case of the transfer of assets or liabilities of the Plan to any other plan,
provision shall 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 which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger,
consolidation, or transfer (if the Plan had then terminated). No such merger,
consolidation, or transfer shall be effected until such statements with respect
thereto, if any, required by ERISA to be filed in advance thereof have been
filed.
Sec. 12.7 DEFERRAL OF DISTRIBUTIONS. Notwithstanding any
provisions of the Plan to the contrary, in the case of a complete or partial
termination of the Plan, the Company or the Funding Agency may (but is not
required to) defer any distribution of benefit payments to Participants and
beneficiaries with respect to which such termination applies until after the
following have occurred:
(a) Receipt of a final determination from the Treasury Department or any
court of competent jurisdiction regarding the effect of such
termination on the qualified status of the Plan under Code section
401(a).
(b) Appropriate adjustment of the Fund to reflect taxes, costs, and
expenses, if any, incident to such termination.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Sec. 13.1 INSURANCE COMPANY NOT RESPONSIBLE FOR VALIDITY OF PLAN.
No insurance company that issues a contract under the Plan shall 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 shall
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.
Sec. 13.2 HEADINGS. Headings at the beginning of articles and
sections hereof are for convenience of reference, shall not be considered a part
of the text of the Plan, and shall not influence its construction.
Sec. 13.3 CAPITALIZED DEFINITIONS. Capitalized terms used in the
Plan shall have their meaning as defined in the Plan unless the context clearly
indicates to the contrary.
Sec. 13.4 GENDER. Any references to the masculine gender include
the feminine and vice versa.
Sec. 13.5 USE OF COMPOUNDS OF WORD "HERE". Use of the words
"hereof", "here", "hereunder", or similar compounds of the word "here" shall
mean and refer to the entire Plan unless the context clearly indicates to the
contrary.
Sec. 13.6 CONSTRUED AS A WHOLE. The provisions of the Plan shall
be construed as a whole in such manner as to carry out the provisions thereof
and shall not be construed separately without relation to the context.
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ARTICLE XIV
TOP-HEAVY PLAN PROVISIONS
Sec. 14.1 KEY EMPLOYEE DEFINED. "Key Employee" means any
employee or former employee of the employer who at any time during the
determination period was an officer of the employer or is deemed to have had an
ownership interest in the employer and who is within the definition of key
employee in Code section 416(i).
Sec. 14.2 DETERMINATION OF TOP-HEAVY STATUS. The top-heavy
status of the Plan shall be determined according to the following standards and
definitions:
(a) The Plan is a Top-Heavy Plan for a Plan Year if either of the
following applies:
If this Plan is not part of a required aggregation group and
the top-heavy ratio for this Plan exceeds 60 percent.
(2) If this Plan is part of a required aggregation group of plans
and the top-heavy ratio for the group of plans exceeds 60
percent.
Notwithstanding paragraphs (1) and (2) above, the Plan is not a Top-
Heavy Plan with respect to a Plan Year if it is part of a permissive
aggregation group of plans for which the top-heavy ratio does not
exceed 60 percent.
(b) The "top-heavy ratio" shall be determined as follows:
(1) If the ratio is being determined only for this Plan or if the
aggregation group only includes defined benefit pension plans,
the top-heavy ratio is a fraction, the numerator of which is
the sum of the present values of the accrued benefits of all
Key Employees under the Plan or plans as of the determination
date (including any part of any accrued benefit distributed in
the five-year period ending on the determination date), and
the denominator of which is the sum of the present value of
all accrued benefits (including any part of any accrued
benefit distributed in the five-year period ending on the
determination date) of all employees under the Plan or plans
as of the determination date. (The "plans" referred to in the
preceding sentence are the plans in the required or permissive
aggregation group.)
(2) If the determination is being made for a required or
permissive aggregation group which includes one or more
defined contribution plans, the top-heavy ratio is a fraction,
the numerator of which is the sum of account balances of all
Key Employees under the defined contribution plans and the
present value of accrued benefits under the defined benefit
plans for all Key Employees as of the determination date
(including any part of any account balance or accrued benefit
distributed in the five-year period ending on the
determination date), and the denominator of which is the sum
of the account balances under the defined contribution plans
for all employees and the present value of accrued benefits
under the defined benefit plans for all employees as of the
determination date (including any part of any account
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balance or accrued benefit distributed in the five-year
period ending on the determination date). (The "plans"
referred to in the preceding sentence are the plans in
the required or permissive aggregation group.) Both the
numerator and denominator of the top-heavy ratio shall be
adjusted to reflect any contribution due but unpaid as of the
determination date.
(3) For purposes of paragraphs (1) and (2), the value of 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.
The account balances and accrued benefits of an employee who
is not a Key Employee but who was a Key Employee in a prior
year will be disregarded. The calculation of the top-heavy
ratio and the extent to which distributions, rollovers, and
transfers are taken into account will be made in accordance
with Code section 416 and the regulations thereunder. When
aggregating plans, the value of account balances and accrued
benefits will be calculated with reference to the
determination dates that fall within the same calendar year.
(c) "Required aggregation group" means (i) each qualified plan of the
employer in which at least one Key Employee participates, and (ii)
any other qualified plan of the Employer that enables a plan
described in (i) to meet the requirements of Code sections 401(a)(4)
and 410.
(d) "Permissive aggregation group" means the required aggregation group
of plans plus any other plan or plans of the employer which, when
consolidated as a group with the required aggregation group, would
continue to satisfy the requirements of Code sections 401(a)(4) and
410.
(e) "Determination date" for any Plan Year means the last day of the
preceding Plan Year.
(f) The "determination period" for a Plan Year is the Plan Year in which
the applicable determination date occurs and the four preceding Plan
Years.
(g) The "valuation date" is the last day of each Plan Year and is the
date as of which account balances or accrued benefits are valued for
purposes of calculating the top-heavy ratio.
(h) If an individual has not performed services for the employer 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 shall not be taken into account for such Plan Year.
Sec. 14.3 MINIMUM ACCRUED BENEFIT. If the Plan is a Top-Heavy
Plan, notwithstanding any other provisions of this Plan, each Participant who is
not a Key Employee shall have a minimum accrued benefit (to be provided by
employer contributions and expressed as a single life annuity, with no ancillary
benefits, commencing at age 65) equal to the applicable percentage of the
Participant's average monthly compensation for years in the testing period.
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(a) For purposes of this section:
(1) The "applicable percentage" is the lesser of 2 percent
multiplied by the Participant's number of years of service
with the employer, or 20 percent. For purposes of this
paragraph (1), a Participant has a year of service for each
Plan Year in which he completes 1000 Hours of Service;
provided, however, that the following years shall not be taken
into account:
(A) Plan Years commencing before January 1, 1984.
(B) Plan Years in which the Plan is not a Top-Heavy Plan.
(C) Plan Years in which the Participant is a Key Employee.
(D) Plan Years that end before the Participant attains age
18.
(E) Plan Years during which the employer did not maintain
the Plan or a predecessor plan.
(2) "Compensation" is defined in Sec. 8.12(k).
(3) "Hour of Service" is defined in Sec. 6.7(f).
(4) A Participant's "testing period" comprises the five
consecutive Plan Years during which the Participant had the
greatest aggregate compensation from the employer, subject to
the following:
(A) The Plan Years taken into account for purposes of this
paragraph shall be adjusted for years not included in
years of service for purposes of paragraph (1) above,
as provided in Code section 416(c)(1)(D)(ii).
(B) Any Plan Year commencing after the last Plan Year in
which the Plan was a Top-Heavy Plan shall be
disregarded for purposes of this paragraph if by
disregarding such Plan Year the Participant's average
monthly compensation for years in the testing period
will be reduced.
(b) If a Participant becomes entitled to a benefit under the Plan, and
(i) if the form of the benefit is other than a single life annuity
and/or (ii) if the benefit commences at an age other than age 65,
the benefit payable to the Participant must be at least the
Actuarial Equivalent of the minimum single life annuity benefit
commencing at age 65.
(c) A Participant's minimum accrued benefit required under this section,
to the extent required to be nonforfeitable under Sec. 14.4, shall
not be subject to suspension of payment under Sec. 6.7(a)(2).
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(d) This section shall not apply to any Participant who is covered under
any other defined benefit plan of the employer to the extent the
minimum benefit requirement otherwise applicable under this Plan
will be satisfied by such other plan.
Sec. 14.4 VESTING SCHEDULE. If a Participant's Termination of
Employment occurs under such circumstances that he is not entitled to a benefit
under Sections 6.1-6.4, and if he was an Active Participant during a Plan Year
for which the Plan was a Top-Heavy Plan, he shall be entitled to a benefit under
this section. Except as modified by this section, such benefit shall be payable
under the terms and conditions that would be applicable to a Vested Termination
benefit under Sec. 6.4.
(a) The monthly amount of the benefit under this section shall be an
amount equal to the Participant's Accrued Monthly Pension multiplied
by the vested percentage determined according to the number of his
years of Elapsed Time, as follows:
Years of Elapsed Time Vested Percentage
- --------------------- -----------------
Less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 or more 100%
(b) This section shall not apply to a Participant who has no Elapsed
Time after the Plan becomes a Top-Heavy Plan.
(c) If the Plan ceases to be a Top-Heavy Plan and continues to be a
non-Top-Heavy Plan until the Participant's Termination of
Employment, the benefit to which the Participant is entitled under
this section shall not exceed the benefit to which he would have
been entitled if his Termination of Employment had occurred on the
date of such cessation. However, the preceding portion of this
subsection (d) shall not apply to any Participant who has completed
three years of Elapsed Time by the end of the last Plan Year for
which the Plan was a Top-Heavy Plan.
Sec. 14.5 PARTICIPATION UNDER DEFINED BENEFIT PLAN AND DEFINED
CONTRIBUTION PLAN. If a Participant is also a participant in a defined
contribution plan maintained by the employer, with respect to any Plan Year for
which the Plan is a Top-Heavy Plan, Sec. 8.12 shall be applied by substituting
"1.0" for "1.25" in paragraphs (2)(B) and (3)(B) of Code section 415(e) and by
substituting "$41,500" for "$51,875" in Code section 415(e)(6)(B)(i). The
foregoing provisions of this section shall be suspended with respect to any
individual so long as there are no employer contributions, forfeitures, or
voluntary nondeductible Contributions allocated to such individual, and no
defined benefit Plan accruals for such individual, either under this Plan or
under any other plan that is in a required aggregation group of plans, within
the meaning of Code section 416(g)(2)(A)(i), that includes this Plan.
Sec. 14.6 DEFINITION OF EMPLOYER. For purposes of this Article
XIV, the term "employer" means the Company and any trade or business entity
under Common Control with the Company.
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Sec. 14.7 EXCEPTION FOR COLLECTIVE BARGAINING UNIT. Sections 14.3
and 14.4 shall not apply with respect to any employee included in a unit of
employees covered by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and one or more
employers if there is evidence that retirement benefits were the subject of good
faith bargaining between such employee representative and such employer or
employers.
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Appendix A
BEMIS RETIREMENT PLAN
Modifications Applicable to Certain
Employees at the Company's Custom Resins Division
Prior to September 1, 1984, employees of the Company's Custom Resins
division were not eligible to participate in the Plan. Such employees instead
participated in the Bemis Custom Resins Division Employees' Pension Plan (the
"Custom Resins Plan"). Effective as of September 1, 1984, employees of the
Custom Resins division are eligible to participate in this Plan, subject to the
following special provisions applicable to Participants who were employees of
said division prior to said date:
1.
Each such employee shall be deemed to have been a Qualified Employee
during his employment with the Custom Resins division after December 31, 1976
and prior to September 1, 1984, subject to the definition of Qualified Employee
in Sec. 2.19, other than subsection (a) thereof. As a result, service and
earnings during said period may be taken into account in determining Years of
Credited Service and Final Average Salary.
2.
Each such employee who was an employee of Custom Resins, Inc.
immediately prior to acquisition of said corporation by the Company in December,
1976 shall have years of Elapsed Time for his uninterrupted service with Custom
Resins, Inc. from his last date of hire by said corporation until December 31,
1976. Each such employee shall have years of Elapsed Time for service on and
after January 1, 1977 as determined under Sec. 3.4.
3.
Each such employee's Accrued Monthly Pension is equal to the amount
determined under Sec. 4.5, less an offset reflecting his Regular Account under
the Custom Resins Plan, said offset to be determined under the following table:
Name of Employee Monthly Offset Amount
- ---------------- ---------------------
E. J. Gentry $175.98
W. J. Bridwell 218.17
W. M. Warner 987.33
A. Lasswell 36.90
G. L. Stanley 205.66
W. Littlepage 254.29
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Appendix B
BEMIS RETIREMENT PLAN
---------
Modifications Applicable to
Employees of Mankato Division of
Harrison & Smith Company, Inc.
------------------
1.
Sec. 1.3 is modified by adding the following paragraphs thereto:
Harrison & Smith Company, Inc. (a Delaware corporation) adopted this
Plan for the benefit of its eligible employees and became a Participating
Employer hereunder as of January 1, 1969. At that time, Mankato Corporation
(a Minnesota corporation) was a wholly-owned subsidiary of Harrison & Smith
Company, Inc. Subsequently, on December 31, 1969, Mankato Corporation (a
Minnesota corporation) was liquidated into Harrison & Smith Company, Inc.
and became an operating division thereof known as the Mankato Division of
Harrison & Smith Company, Inc. (hereinafter referred to as "the Mankato
Division"). Mankato Corporation (a Minnesota corporation) was never a
Participating Employer hereunder.
The Mankato Division maintains the Mankato Retirement Plan
(hereinafter referred to as the "Mankato Plan") for the benefit of its
eligible employees. The Mankato Plan is embodied in a group annuity
contract issued by The Prudential Insurance Company of America. Effective
as of January 1, 1971, Harrison & Smith Company, Inc. amended the Mankato
Plan so as to discontinue the further accrual of benefits thereunder by
salaried and office-clerical employees of the Mankato Division and
simultaneously adopted this Appendix to provide for the participation of
such employees under this Plan. Persons formerly employed by the Mankato
Division later became employees of Mankato Corporation, a Delaware
corporation, which became a Participating Employer. The participation of
such employees under this Plan shall be governed by the provisions of this
Appendix.
2.
Sec. 6.5 is amended in its entirety to read as follows:
Sec. 6.5 BENEFITS UNDER MANKATO PLAN. Benefits accrued under the
Mankato Plan shall be provided under the conditions, at the times, in the
manner, and in the amounts provided by such Mankato Plan, and the
provisions of the other sections contained in this Article VI shall not
apply to benefits payable under the Mankato Plan. Nevertheless, pension
benefits payable under this Plan to former Participants who were
participants in the
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Mankato Plan prior to January 1, 1971 and to the Beneficiaries of such
former Participants shall be paid only in accordance with the following
terms and conditions:
(a) Each monthly pension benefit otherwise payable to such a
former Participant under Sec. 6.1, Sec. 6.2, Sec. 6.3, or Sec.
6.4 shall be reduced by the monthly amount of the normal
retirement annuity accrued on his behalf on December 31, 1970
under the Mankato Plan as in effect on December 31, 1970;
provided, however, that if benefits under this Plan commence
prior to his Normal Retirement Date, the monthly amount of the
normal retirement annuity accrued under the Mankato Plan on
December 31, 1970 shall be converted by the Actuary (without
giving effect to any death benefit payable under the Mankato
Plan) to the monthly amount that would be payable under an
actuarially equivalent benefit commencing on the same date and
in the same form as his benefit under this Plan.
(b) Any optional form of pension elected by such a former
Participant pursuant to the terms of Sec. 7.4 shall be
applicable only to the net amount of the monthly pension
benefit payable after making the reduction provided for in
paragraph (a) of this section.
3.
Sec. 7.5 is deleted in its entirety.
4.
Actuarial Equivalents for this Appendix will be determined under Sec. 4.10.
53
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Appendix C
BEMIS RETIREMENT PLAN
Modifications Applicable to Certain
Employees and Former Employees of
Hayssen Manufacturing Company
Prior to April 1, 1980, Hayssen Manufacturing Company ("Hayssen")
maintained the Hayssen Retirement Plan as a separate plan for the benefit of its
eligible employees. Effective as of April 1, 1980, the Hayssen Retirement Plan
was merged with and into the Bemis Retirement Plan. The following modifications
of the Bemis Retirement Plan are applicable in determining benefits payable with
respect to persons who were participants in the Hayssen Retirement Plan and who
terminated employment on or after January 1, 1989. Such persons are hereafter
referred to as "Hayssen Plan Participants". This Appendix is also applicable in
determining the pension payable to any person who was a salaried employee of
Hayssen and who transferred to a position as a salaried employee of Bemis
Company, Inc. prior to July 1, 1976, and such a person is considered to be a
"Hayssen Plan Participant", provided he is a Qualified Employee on January 1,
1980 and has a Termination of Employment on or after January 1, 1989.
1.
Hayssen is a Participating Employer effective as of April 1, 1980.
2.
A Hayssen Plan Participant shall be deemed to have been a Qualified
Employee during his employment with Hayssen prior to April 1, 1980, subject to
the provisions of Sec. 2.19 other than Sec. 2.19(a). However, in the case of any
person who became a participant in the Hayssen Retirement Plan on or before
January 1, 1980, service with Hayssen prior to January 1, 1980 in capacities
other than as an employee compensated in whole or in part on a regular stated
salary basis or employed in an office clerical or supervisory position shall not
be excluded from service as a Qualified Employee, except to the extent provided
in Sec. 2.19(b).
3.
A Hayssen Plan Participant's years of Elapsed Time shall be
determined under Sec. 3.4; subject to the following:
(a) A Hayssen Plan Participant shall not have fewer years of Elapsed
Time for service prior to January 1, 1981 than his years of vesting
service for such service as defined in Section 1.01(z) of the
Hayssen Retirement Plan as in effect prior to the Merger Date.
(b) If a Hayssen Plan Participant either (i) has an Employment
Commencement Date which is prior to January 1, 1976 or (ii) has, on
January 1, 1981, at least five years of vesting service as defined
in Section 1.01(z) of the Hayssen Retirement Plan, his
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years of Elapsed Time shall not be less than the years of vesting
service he would have had under Section 1.01(z) of the Hayssen
Retirement Plan if said plan had remained in effect until his
Termination of Employment.
4.
For purposes of determining his Credited Service under Sec. 3.5, a
Hayssen Plan Participant's Credited Service with respect to service as an
employee of Hayssen prior to January 1, 1976 shall be equal to his Credited
Service prior to January 1, 1976 as determined under the Hayssen Retirement Plan
as in effect on June 30, 1976; provided, however, that all service as a
Qualified Employee as defined in '2' of this Appendix shall be recognized in
computing said benefit if he became a participant in the Hayssen Retirement Plan
on or before January 1, 1980. However, in the case of any person referred to in
the last sentence of the preamble to this Appendix, his Credited Service prior
to January 1, 1976 shall be equal to the Credited Service he would have had
under the Bemis Retirement Plan if Hayssen had been a Participating Employer on
and after the person's Employment Commencement Date.
5.
Each Hayssen Plan Participant shall be a Participant in the Plan as
of April 1, 1980.
6.
The following sentence shall be added at the end of Sec. 6.5:
In the case of any person who became a participant in the Hayssen
Retirement Plan prior to January 1, 1980 and who was formerly a Participant in
the Hayssen Manufacturing Company Retirement Plan for Production, Maintenance
and Nonsupervisory Engineering Employees, said reduction of his monthly benefit
shall be based on the amount (expressed on a comparable basis that is an
Actuarial Equivalent) he would have been eligible to receive under said plan.
Said amount shall be the monthly benefit payable under said plan plus any
additional benefit attributable to his account balance under Hayssen
Manufacturing Company Employees' Trust Number 2.
7.
7.1 PRIOR SERVICE BENEFIT DESCRIBED. Prior to establishment of the
Hayssen Retirement Plan, Hayssen maintained a profit sharing plan for the
benefit of certain employees. That plan was named Hayssen Manufacturing Company
Employees' Trust Number 1 ("Trust Number 1"). Hayssen discontinued contributions
to Trust Number 1 for calendar years 1972 and following. Amounts held in Trust
Number 1 for the benefit of persons who became participants in the Hayssen
Retirement Plan, to the extent such amounts were attributable to employer
contributions, were transferred to the Hayssen Retirement Plan as of
December 31, 1972. Certain benefits under the Hayssen Retirement Plan were based
on the amounts so transferred plus interest.
7.2 DEFINITION OF PRIOR SERVICE BENEFIT. A Hayssen Plan
Participant's "Prior Service Benefit" is the value of his individual account in
Trust Number 1 determined as of December 31, 1972 plus accumulated interest
thereon, determined as follows:
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(a) For the period from December 31, 1972 though December 31, 1984,
accumulated interest shall be computed at the annual rate of 5%,
compounded annually.
(b) For the period commencing January 1, 1985, accumulated interest
shall be compounded annually, as of each December 31, with interest
for a particular Plan Year to be credited at the same annual rate as
was used as the interest rate in the actuarial valuation of the Plan
for the actuarial valuation date occurring within that Plan Year.
However, no interest will be credited for periods after the
Participant's death or the date as of which his pension commences,
whichever first occurs. For the year in which an event referred to
in the preceding sentence occurs, interest on the Participant's
Prior Service Benefit will be credited up to said event based on the
interest rate used at the end of the preceding Plan Year for the
year end adjustment of Prior Service Benefits.
7.3 ELECTION TO RECEIVE PRIOR SERVICE BENEFIT. Upon Termination of
Employment, any Hayssen Plan Participant may elect to receive his Prior Service
Benefit. A Hayssen Plan Participant who continues to be employed by a
Participating Employer after attaining age 65 may also elect to receive his
Prior Service Benefit. Said elections shall be made in accordance with rules
prescribed by the Company. Said rules may prescribe the method of so electing
and the deadline by which the election must be filed with the Company. If a
Participant makes such an election, an amount equal to his Prior Service Benefit
shall be paid to him in one sum as soon as practicable after his election,
provided he is living on the payment date. If a Participant's Prior Service
Benefit is paid to him pursuant to this section, his benefit under the Plan
shall be reduced by an amount which is the Actuarial Equivalent of the Prior
Service Benefit.
If a Participant's death occurs prior to the date payment of his
Prior Service Benefit would be made under this section, no payment shall be made
under this section, but his Beneficiary may be entitled to a benefit under 7.4
of this Appendix.
7.4 OTHER DEATH BENEFITS. After all benefits payable with respect
to a Participant have been paid (including any benefits payable to the
Participant during his lifetime plus any death benefits payable under Sec. 7.1,
7.2, or 7.4), his Beneficiary shall be entitled to receive a single sum payment
equal to the amount, if any, by which (a) exceeds (b):
(a) The Participant's Prior Service Benefit.
(b) All benefits paid to the Participant during his lifetime (including
monthly pension benefits and also including any refund of his Prior
Service Benefit pursuant to the foregoing provisions of this
Appendix) plus any death benefits payable under Sec. 7.1, 7.2, or
7.4.
7.5 DISTRIBUTIONS PRIOR TO JULY 1, 1976. In any case where a
Hayssen Plan Participant's benefit under Trust Number 1 was paid to him prior to
July 1, 1976 upon his transfer from employment with Hayssen to a position as a
salaried employee of Bemis Company, Inc., said payment shall not result in any
reduction of his Accrued Monthly Pension.
56
<PAGE>
BEMIS COMPANY, INC.
SUPPLEMENTAL RETIREMENT PLAN
Article I
GENERAL
Sec. 1.1 NAME OF PLAN. The name of the plan set forth herein is "Bemis
Company, Inc. Supplemental Retirement Plan." It is sometimes referred to herein
as the "Plan".
Sec. 1.2 PURPOSE. The Plan has been established for the following
purposes:
(a) To provide the additional benefits which would have been
provided under the Bemis Retirement Plan (hereinafter
referred to as the "Retirement Plan") but for the limitations
imposed by Section 415 of the Internal Revenue Code (the
"Code") and/or Retirement Plan Sec. 8.12 or any successor to
either of said sections. By providing such benefits, the
Plan is an "excess benefit plan" under Section 3(36) of the
Employee Retirement Income Security Act of 1974 ("ERISA").
(b) To provide benefits which would have been payable under the
Retirement Plan but for the $200,000 annual limit on covered
compensation imposed by Code section 401(a)(17). By
providing such benefits, the Plan provides deferred
compensation for a select group of management or highly
compensated employees and therefore is exempt from most
requirements of ERISA.
(c) To provide benefits which would have been payable under the
Retirement Plan but for an election or elections by an
individual employee to defer compensation into a later year
or years. By providing such benefits, the Plan provides
deferred compensation for a select group of management or
highly compensated employees and therefore is exempt from
most requirements of ERISA.
Sec. 1.3 DEFINITIONS. Unless otherwise specified herein, capitalized
terms used herein shall have the meanings specified in the Retirement Plan as
amended from time to time.
Sec. 1.4 PARTICIPATING EMPLOYERS. Each employer which is a Participating
Employer under the Retirement Plan is also a Participating Employer under this
Plan, except that Morgan Adhesives Company sponsors a separate Supplemental
Retirement Plan and therefore is not a Participating Employer under this Plan.
<PAGE>
Article II
BENEFITS
Sec. 2.1 ELIGIBILITY TO RECEIVE A BENEFIT. If a person's Termination of
Employment occurs under circumstances that a benefit is payable under the
Retirement Plan to him or his surviving spouse, contingent annuitant, or
beneficiary, a benefit shall also be payable under this Plan if the benefit
under the Retirement Plan is limited for one or more of the reasons listed in
Sec. 1.2(a), (b), and (c). Each employee or former employee eligible to receive
a benefit under the Plan is a "Participant" in the Plan.
Sec. 2.2 AMOUNT PAYABLE. The benefit payable with respect to a
Participant shall be paid in a single sum promptly after the date his pension
commences under the Retirement Plan, subject to the following:
(a) Said benefit shall be in an amount equal to the Actuarial
Equivalent of the Participant's "Supplemental Pension" as
defined in subsection (c).
(b) Actuarial Equivalents under this Plan shall be determined
under the actuarial assumptions the Retirement Plan uses to
convert monthly benefits to single sums.
(c) The "Supplemental Pension" of a Participant for purposes of
determining the single sum amount payable under this Plan is
a monthly pension for each month a pension is payable to the
Participant or to his surviving spouse, contingent
annuitant, or beneficiary under the Retirement Plan in a
monthly amount equal to the amount, if any, by which (1)
exceeds (2):
(1) The monthly amount which would have been payable to the
Participant or his surviving spouse, contingent
annuitant, or beneficiary under the Retirement Plan for
that month if:
(A) The limitations imposed by Code section 415 and/or
Retirement Plan Sec. 8.12 or any successor to
either of said sections were not applicable.
(B) The $200,000 limit referred to in Sec. 1.2(b) were
not applicable.
(C) The Participant had received all compensation when
it was first available for payment, and he had not
elected to
-2-
<PAGE>
defer payment of any portion of his compensation
to a later year.
Said monthly amount shall be calculated under the
settlement option or form of payment under which
benefits are being paid by the Retirement Plan.
(2) The monthly amount actually payable under the
Retirement Plan to the Participant or his surviving
spouse, contingent annuitant or beneficiary for that
month under the settlement option or form of payment
under which benefits are paid.
(d) If the Participant's death occurs prior to the date his
monthly pension begins under the Retirement Plan, and death
benefits are payable under the Retirement Plan to his
surviving spouse, contingent annuitant, or beneficiary, the
monthly amount of the Supplemental Pension shall be
determined by reference to the benefits payable to said
person rather than by reference to the pension the
Participant would have received had he lived.
Sec. 2.3 TO WHOM PAYABLE. If the Participant is alive on the commencement
date of his pension under the Retirement Plan:
(a) The single sum amount shall be the Actuarial Equivalent of
the entire Supplemental Pension with respect to him
including both benefits payable during his lifetime and
benefits payable after his death.
(b) Said single sum amount will be paid in full to the
Participant and no portion thereof will be payable to his
spouse, contingent annuitant, or other beneficiary.
If the Participant dies prior to the date his pension under the Retirement Plan
commences, and a benefit is payable with respect to him under the Retirement
Plan to his surviving spouse, contingent annuitant, or beneficiary, the benefits
under this Plan shall be paid to said person.
Sec. 2.5 INDIVIDUAL AGREEMENTS. Benefits provided by this Plan may be
evidenced by individual employment agreements between the Company and
individuals who are or may become eligible for such benefits. Benefits provided
by the Plan will be paid to an individual regardless of whether those benefits
are evidenced by an individual employment agreement. Any such individual
agreement may provide for additional benefits over and above those provided by
this Plan.
-3-
<PAGE>
Article III
AMENDMENT OR TERMINATION
Sec. 3.1 AMENDMENT. The Company, by action of the Board, may amend
the Plan from time to time.
Sec. 3.2 TERMINATION. The Company, by action of the Board, may
terminate the Plan.
Sec. 3.3 PRESERVATION OF BENEFITS. Notwithstanding any provisions of
Sec. 3.1 or Sec. 3.2 to the contrary:
(a) No amendment or termination of the Plan under said sections shall
have the effect of reducing a Participant's aggregate benefit
under this Plan and the Bemis Retirement Plan to less than the
amount which would have been payable to him if the amendment or
termination had not occurred, said amount to be based solely on
his compensation and service prior to the effective date of the
amendment or termination.
(b) If an Event occurs, the Company may not take action after said
Event to curtail benefits hereunder with respect to persons who
were employees of the Company or its Affiliates immediately prior
to the Event. An "Event" shall be deemed to have occurred if
(1) a majority of the Board shall be persons other than persons
(A) for whose election proxies shall have been solicited by the
Board or (B) who are then serving as directors appointed by the
Board to fill vacancies on the Board caused by death or
resignation (but not removal) or to fill newly-created
directorships; or (2) a majority of the voting stock of the
Company or all or substantially all of the assets of the Company
are acquired or held by any person (other than a subsidiary of
the Company) or group of persons, acting in concert, which does
not include the Participant, whether by acquisition of assets,
merger, consolidation, tender or exchange offer for shares, or
otherwise; or (3) the Company is merged into or consolidated with
another corporation (other than a subsidiary of the Company)
unless a majority of the voting stock of the surviving
corporation is, immediately following the merger or
consolidation, held by the Participant (or a group of persons,
including the Participant, acting in concert).
-4-
<PAGE>
BEMIS EXECUTIVE INCENTIVE PLAN (BEIP)
PLAN DESCRIPTION
The Bemis Executive Incentive Plan is intended to provide the incentive for
executive action which will facilitate achievement of corporate goals and
objectives. The Plan has been designed to be an integral part of the Company's
cash compensation program for participating executives. Under the Plan,
adjustments in an individual's base salary are based on demonstrated ability to
meet job responsibilities over an extended period of time, whereas incentive
awards are based on annual performance results.
Participants are executives in salary grades 18 and above. The effective
starting date of participation may be immediately on promotion or the following
year, at the discretion of the profit center head. Participation of executives
in Grades 16A and 17A is individually determined.
Participants who terminate during the Plan year should not receive an award.
DETERMINING THE AWARDS
- --------------------------------------------------------------------------------
The amount of an individual award depends on several factors:
1. The individual's salary and salary grade, which determines the "normal"
award.
2. The performance rating given the participant by his/her superiors.
3. The actual results of the profit center versus the BEIP target.
4. The performance of the total company versus its BEIP target.
Finally, all of these factors, through a predetermined calculation process, come
together to determine the individual participant awards. This process is
outlined below.
DEVELOPING THE INCENTIVE COMPENSATION AWARDS
- --------------------------------------------------------------------------------
1. Normal Award Funds
The first step is to calculate "normal" incentive compensation funds --
one for each profit center, and one for the corporate staff group. Each
profit center's normal incentive compensation fund is the sum of the
normal awards of all Plan participants in the profit center. Each
participant's normal award is calculated by applying a normal award
percent for position grade to actual base salary earnings for the year.
- --------------------------------------------------------------------------------
PAGE 1 APRIL 1,1990
<PAGE>
Normal award percents vary according to salary grade and represents the
percentage of salary that would be paid as an award if the Company's,
the profit center's and the individual's performance all equaled 100
percent of planned performance.
2. Individual Ratings
Individual awards are determined by the results of corporate results
versus Plan, profit center results versus Plan, and the individual
performance. Individual performance ratings, based on performance
measured against objectives set for the year, are made on all
participants prior to the end of the Plan year. Acceptable performance
is 1.000. Ratings may vary from 0 to 2.000. A copy of the rating form
is attached.
If the sum of individual recommended awards exceeds the adjusted funds
for the profit center, the Board Compensation Committee has the final
authority to decide the limits of such excess amounts. If the sum of
the individual awards exceeds the approved excess, the awards are
adjusted to equal the funds. If the sum of individual recommended
awards is less than the adjusted funds, the excess will revert to the
Company.
Awards for different levels of management have varying degrees of
corporate versus profit center results used in the determination.
a. Corporate management/staff bonuses are based entirely on corporate
results.
b. Other levels of management may have a 75 percent divisional/25
percent corporate influence, 65 percent divisional/35 percent
corporate influence, or 50/50, depending on position.
Divisional results are obtained by comparing profit target
against results.
Each individual is advised of the basis for determination at the beginning of
the Plan year.
3. Fund Adjustments
Next, the normal incentive compensation fund for each profit center is
adjusted up or down, according to a formula, to reflect the profit
center's actual results (the Company's in the case of the corporate
staff group) in achieving the planned BEIP target for the year. The
award fund will be increased or decreased by 1.5 percent for each one
percentage point increase (or decrease) off the 100 percent profit
target between 70 and 140 percent (see the following sample calculation
and BEIP Funding Scale). Payouts are discretionary for performance
exceeding 140 percent or falling below 70 percent of Plan.
- --------------------------------------------------------------------------------
PAGE 2 APRIL 1, 1990
<PAGE>
The following exceptions to this may occur:
a. The Compensation Committee of the Board of Directors, acting
on the recommendations of management, may make adjustments for
significant changes in the business environment which
significantly affect results and were not included in the Annual
Business Plan--thus, eliminating those situations which would
inappropriately distort the fund. These adjustments are to be
determined prior to the end of the Plan year.
b. Performance of a profit center whose BEIP target is near break-even
can, with relatively small deviation from Plan, effect a large swing
in the adjusted fund. Therefore, such situations will be given special
consideration by the Board Compensation Committee to avoid distortions
of the intent of the Plan. The amount of the adjusted fund will, in
those instances, depend largely on the evaluation of the management
actions rather than on the arithmetic calculation of the fund.
4. Calculation Steps
Each of the above factors has a part in determining the individual
participant award. The fund performance factors and the individual
factors come together in the calculations which occur following the
availability of the year's audited results.
Calculation of the awards is made as follows:
a. NORMAL AWARD is actual salary paid in Plan year times normal percent.
b. Normal award times performance rating equals ADJUSTED NORMAL AWARD.
c. PERFORMANCE-ADJUSTED NORMAL AWARD is divided into
predetermined parts to reflect profit center and corporate
impact (either 100 percent corporate, 65 percent divisional/35
percent corporate, 75 percent divisional/25 percent corporate,
or 50/50).
d. Each part is multiplied by appropriate fund adjustment multiplier.
(1) Profit center results vs. BEIP target adjusted by the BEIP
Funding Scale = profit center adjustment.
(2) Corporate results vs. BEIP target adjusted by the BEIP Funding
Scale = corporate adjustment.
e. Add the components to make final adjusted award.
- --------------------------------------------------------------------------------
PAGE 3 APRIL 1, 1990
<PAGE>
f. Sum of final individual adjusted awards determines whether the total
exceeds allowable amount set by Compensation Committee. Awards are
adjusted down, if necessary.
The following example traces these steps:
- --------------------------------------------------------------------------------
PAGE 4 APRIL 1, 1990
<PAGE>
BEIP CALCULATION EXAMPLES
FACTS:
- --------------------------------------------------------------------------------
- Mr. A - Paid $40,000 in Salary Grade 19 - Normal Bonus - 17%
- 75% of award based on profit center; 25% corporate.
- Profit Center Results: 110% of Target
- Corporate Results: 116% of Target
- Individual Performance Rating: 1.125
SAMPLE ONE CALCULATIONS:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$40,000 - SALARY
X 17% - BEIP %
-------
$ 6,800 - NORMAL AWARD
X 1.125 - PERFORMANCE RATING
-------
$ 7,650 - PERFORMANCE-ADJUSTED
NORMAL AWARD
Profit Center Results Corporate Results
--------------------- -----------------
110% of Target Results 116% of Target Results
10% Variance from 100% Plan 16% Variance from 100% Plan
10% X 1.5 = 15% 16% X 1.5 = 24%
100% + 15% = 115% 100% + 24% = 124%
115% Adjusted Fund Factor 124% Adjusted Fund Factor
75% of $7,650 = $5,738 25% of $7,650 = $1,912
$5,738 X 1.15 = $6,599 $1,192 X 1.24 = $2,371
------------------------------------------------------------
$6,599
2,371
-----
$8,970 - FINAL ADJUSTED AWARD PAYOUT
------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PAGE 5 APRIL 1, 1990
<PAGE>
FACTS:
- --------------------------------------------------------------------------------
Suppose the following conditions changed:
- Profit Center Results: 90% of Target
- Corporate Results: 87% of Target
- Individual Performance Rating: .750
SAMPLE TWO CALCULATIONS:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$40,000 - SALARY
X 17% - BEIP %
$ 6,800 - NORMAL AWARD
X .75 - PERFORMANCE RATING
-------
$ 5,100 - PERFORMANCE-ADJUSTED
NORMAL AWARD
Profit Center Results Corporate Results
--------------------- -----------------
90% of Target Results 87% of Target Results
(10%) Variance from 100% Plan (13%) Variance from 100% Plan
(10%) X 1.5 = (15%) (13%) X 1.5 = (19.5%)
100% + (15%) = 85% 100% + (19.5%) = 80.5%
85% Adjusted Fund Factor 80.5% Adjusted Fund Factor
75% of $5,100 = $3,825 25% of $5,100 = $1,275
$3,825 X .85 = $3,251 $1,275 X .805 = $1,026
------------------------------------------------------------
$3,251
1,026
-----
$4,277 - FINAL ADJUSTED AWARD PAYOUT
------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PAGE 6 APRIL 1, 1990
<PAGE>
BEMIS EXECUTIVE INCENTIVE PLAN (BEIP)
INDIVIDUAL PERFORMANCE EVALUATION RATING FORM
This form should be used to provide performance evaluation ratings for each of
the BEIP participants that report to you. Check the award adjustment factor that
best reflects the participant's performance.
AWARD
DEFINITION ADJUSTMENT FACTOR
- ---------- -----------------
- - UNACCEPTABLE PERFORMANCE. IMMEDIATE CORRECTIVE ACTION IS NO BONUS
REQUIRED IF THE NO BONUS INDIVIDUAL IS TO REMAIN IN THE
ASSIGNMENT.
- - INADEQUATE PERFORMANCE - RAPID IMPROVEMENT ESSENTIAL. .250
.500
- - PERFORMANCE IS LESS THAN IS REQUIRED OF THE POSITION AND .625
SHOWS NEED OF IMPROVEMENT - MARGINAL PERFORMANCE. .750
- - PERFORMANCE MEETS THE STANDARD REQUIREMENTS OF THE .875
POSITION AND REFLECTS GOOD PROGRESS TOWARD ACHIEVING 1.000
PRINCIPAL OBJECTIVES. 1.125
- - PERFORMANCE NOTICEABLY EXCEEDS THE REQUIREMENTS OF THE 1.250
POSITION AND EXPECTATIONS OF THE SUPERVISOR. 1.375
- - PERFORMANCE FAR EXCEEDS THE REQUIREMENTS OF THE POSITION, 1.500
SO AS TO BE EASILY RECOGNIZABLE BY ANYONE KNOWLEDGEABLE 1.750
OF THE WORK.
- - OUTSTANDING PERFORMANCE OF UNUSUAL PROPORTION. 2.000
NAME OF PARTICIPANT:
- --------------------------------------------------------------------------------
SIGNATURE OF IMMEDIATE SUPERVISOR: DATE:
- -------------------------------------------------------------------------------
SIGNATURE OF SUPERIOR OF IMMEDIATE SUPERVISOR: DATE:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PAGE 7 APRIL 1, 1990
<PAGE>
BEIP FUNDING SCALE
RESULT % FUND % RESULT % FUND %
- -------- ------ -------- ------
Above 140..................Discretionary 104...........................106.0
140..............................160.0 103...........................104.5
139..............................158.5 102...........................103.0
138..............................157.0 101...........................101.5
137..............................155.5 100...........................100.0
136..............................154.0 99.............................98.5
135..............................152.2 98.............................97.0
134..............................151.0 97.............................95.5
133..............................149.5 96.............................94.0
132..............................148.0 95 ............................92.5
131..............................146.5 94.............................91.0
130..............................145.0 93.............................89.5
129..............................143.5 92.............................88.0
128..............................142.0 91.............................86.5
127..............................140.5 90.............................85.0
126..............................139.0 89.............................83.5
125..............................137.5 88.............................82.0
124..............................136.0 87.............................80.5
123..............................134.5 86.............................79.0
122..............................133.0 85.............................77.5
121..............................131.5 84.............................76.0
120..............................130.0 83.............................74.5
119..............................128.5 82.............................73.0
118..............................127.0 81.............................71.5
117..............................125.5 80.............................70.0
116..............................124.0 79.............................68.5
115..............................122.5 78.............................67.0
114..............................121.0 77.............................65.5
113..............................119.5 76.............................64.0
112..............................118.0 75.............................62.5
111..............................116.5 74.............................61.0
110..............................115.0 73.............................59.5
109..............................113.5 72.............................58.0
108..............................112.0 71.............................56.5
107..............................110.5 70.............................55.0
106..............................109.0 Below 70..............Discretionary
105..............................107.5
- --------------------------------------------------------------------------------
PAGE 8 APRIL 1, 1990
<PAGE>
BEMIS COMPANY, INC.
LONG TERM DEFERRED COMPENSATION PLAN
Section 1. PURPOSE OF PLAN. The purpose of the Bemis Company, Inc.
Long Term Deferred Compensation Plan (the "Plan") is to enable key executives
and directors to accumulate additional funds for retirement or other future
needs by deferring current income. The plan is intended to qualify as an
unfunded plan for a select group of management or highly compensated employees
under Labor Department Reg. 2520.104.23, and will be construed and administered
consistent with that intent.
Section 2. DEFINITIONS. The following definitions shall apply for
purposes of this Plan:
(a) "Account" means an Account established pursuant to Section 6.
(b) "Beneficiary" means the person or persons a Participant designates
as such on his or her Participation Agreement or by means of a
separate written designation filed with the Company. The
Participant may alter or revoke such designation without the consent
of the Beneficiary. If there is no such designation in effect at the
time of the Participant's death, or none of the designated
Beneficiaries survives the Participant, the Participant's estate
shall be the Beneficiary. If a Beneficiary survives the
Participant, but dies before payment of all amounts to which the
Beneficiary is entitled, any remaining payments will be made to the
Beneficiary's estate, unless the Participant designates otherwise.
(c) "Board" means the board of directors of the Company, and includes
any executive committee thereof authorized to act for the board of
directors.
(d) "Committee" means the Bemis Employee Benefits Committee.
(e) "Company" means Bemis Company, Inc., a Missouri corporation.
(f) "Participant" means an individual designated as such pursuant to
Section 4.
(g) "Participating Employer" means the Company and any subsidiary or
affiliate of the Company which employs one or more Participants.
(h) "Participation Agreement" is the agreement entered into between a
Participant and the Company regarding participation in this Plan.
(i) "Plan Year" means the twelve month period ending each December 31,
and corresponds to the fiscal year of the Participating Employers.
<PAGE>
(j) "Termination of Service" of a Participant who is an employee of a
Participating Employer shall be deemed to occur upon the happening
of any event which, under the policy of the Company, results in the
termination of the employer-employee relationship; provided,
however, that Termination of Service shall not be deemed to occur
upon any transfer between Participating Employers. In the case of
Company directors who are not employees, "Termination of Service"
for purposes of the Plan means the date the individual ceases to be
a director.
Section 3. ADMINISTRATION OF PLAN. The Plan shall be administered in
behalf of the Company by the Committee, subject to the following:
(a) The Committee shall have discretionary authority to construe the
terms of the Plan and to make all decisions and interpretations
incident thereto. The Committee may from time to time adopt such
rules for the administration of the Plan as it deems appropriate.
(b) The decision of the Committee on any matter affecting the Plan or
the rights and obligations arising under the Plan shall be final and
binding upon all persons.
(c) The Committee shall have authority to designate employees of the
Participating Employers as Participants.
(d) The Committee shall enter into a Participation Agreement with each
Participant. Such Agreements may be executed in behalf of the
Committee by one or more members thereof.
(e) As of the beginning of each Plan Year the Committee shall approve
the value of each Account and shall review all other calculations
made under the Plan.
Section 4. ELIGIBILITY TO PARTICIPATE. Participants who are employees
shall be designated by the Committee from among key executives of the
Participating Employers. In addition, each director of the Company who is not
an employee is a Participant. The terms of a Participant's deferral election
shall be set forth in a Participation Agreement executed by the Participant and
Committee.
Section 5. DEFERRAL OF COMPENSATION. Each Plan Year a Participant may
elect to have his bonus or director fees with respect to that Plan Year reduced
by an amount or percentage designated by the Participant. Said elections are
subject to the following:
-2-
<PAGE>
(a) The reduction may be designated as a percentage of the bonus or
director fees, as a dollar amount, or as a combination of the two.
(For example, the Participant may direct a deferral equal to 50% of
his or her bonus to the extent the bonus exceeds $10,000.) No
particular formula need be used, provided the deferral formula is
clearly stated in the Participant's Participation Agreement.
(b) The reduction must be specified in a written Participation Agreement
filed with the Committee prior to the Plan Year in which the bonus
or director fees will be earned. For example, for the bonus earned
in 1995 and payable early in 1996, the election must be filed by
December 31, 1994. Participation Agreements are subject to the
following:
(1) When an employee first becomes a Participant, he may elect a
deferral not later than 30 days after the date he becomes a
Participant; provided however, that any such election with
respect to bonuses earned in a particular Plan Year must be
made not later than December 24 of that Plan Year.
(2) A director who is not an employee may make his initial
deferral election not later than 30 days after the date he
becomes a Participant.
(c) The amount by which a Participant's bonus or director fees is
reduced will be credited to his Account as provided in Section 6.
Section 6. PARTICIPANT ACCOUNTS. One or more Accounts shall be
established for each Participant who elects to defer compensation pursuant to
Section 5, subject to the following:
(a) As part of his election to defer all or a part of his annual bonus
or director fees, the Participant shall designate whether the
deferral amount will be credited 100% to Account A, 100% to Account
B, or 50% to Account A and 50% to Account B. Account A will be
credited with interest as specified in subsection (b). Account B
will be adjusted up or down to reflect the market performance and
dividends on common stock of the Company, as provided in subsection
(c). Bonus amounts which are deferred will be credited to Account A
and/or Account B as of January 1 of the year in which the bonus
would otherwise be paid to the Participant. For example, bonuses
earned with respect to 1995 would normally be paid to the
Participant early in 1996 and the deferred portion of any such bonus
will be credited to the appropriate deferred compensation Account as
of January 1, 1996. Director fees which are deferred will be
credited to Account A and/or Account B as of the first day of the
month in which the director fees would have been paid but for the
deferral.
-3-
<PAGE>
(b) Amounts a Participant elects to have credited to his Account A will
be credited with interest each Plan Year at an annual rate equal to
the published prime rate at Norwest Bank Minnesota, N.A. on the
first business day of said Plan Year. Said interest will be accrued
and compounded quarterly.
(c) Amounts a Participant elects to have credited to his Account B will
be adjusted to reflect the performance of common stock of the
Company as follows:
(1) Amounts credited to Account B as of the first day of any
month will be converted to phantom units by dividing the
dollar amount credited by the closing price of a share of the
Company's common stock on the New York Stock Exchange on the
first business day of that month.
(2) Phantom units outstanding on the record date for a dividend
on the Company's common stock will be credited with dividends
on said phantom units in a dollar amount per unit equal to
the actual dividend on the Company's common stock. Each such
dividend will be converted to additional phantom units as of
the dividend payment date with the number of additional units
to be determined by dividing the aggregate dividend on the
existing phantom units by the closing price of a share of the
Company's common stock on the New York Stock Exchange on said
dividend payment date.
(3) As of the first business day of any month in which a payment
is to be made to a Participant or a Beneficiary under the
Plan, the phantom units with respect to which payment is
being made will be converted back to a dollar amount
by multiplying each phantom unit by the closing price of a
share of the Company's common stock on the New York Stock
Exchange on the first business day of the particular month.
(4) The Committee may adjust the number of phantom units credited
to a Participant's Account to reflect the effect of stock
dividends, splits, reverse splits, or any other adjustments
for which the Committee deems such an adjustment to be
appropriate.
(d) More than one Account A or Account B may be established for a
Participant to reflect changes in the Participant's election with
regard to timing of benefit payouts. For example, if a Participant
directs that his bonuses earned in 1994 through 1996 will be paid at
Termination of Service, while his bonuses earned in 1997 and 1998
will be paid beginning in the year 2010, separate Accounts A and
B would be established to reflect the separate payout elections.
-4-
<PAGE>
(e) During the Plan Year in which the Participant has a Termination of
Service, he may direct that all or any part of his units in Account
B be converted to a fixed dollar amount and transferred to Account
A. The fixed dollar amount shall be determined as the first
business day of the Plan Year following the Plan Year in which the
election is made and will be determined by multiplying the number
of phantom units which are being converted by the closing price of a
share of the Company's common stock on said first business day.
Section 7. PAYMENT OF BENEFITS. As part of his deferral election, a
Participant shall designate the year or years in which the deferred amounts will
be paid to him. A Participant may designate that the entire amount will be paid
in one year, or that payment will be made in annual installments over a period
of five or ten years beginning with a designated year. Such elections are
subject to the following:
(a) A designation may designate a particular year for commencement of
payments (e.g., 2010) or the commencement date may be by reference
to the Participant's Termination of Service. If a particular year
is designated, it must be a year commencing more than six months
after the date the deferred amounts would have been paid but for the
deferral election.
(b) If the Participant designates that payments will occur over a period
of five or ten years, the amount payable in a particular year will
be equal to his Account balance divided by the number of remaining
installments including the current installment. Payments will come
pro rata from Account A and Account B, in proportion to the relative
values of the Accounts from which payment is being made.
(c) In the event of a Participant's death, payments will be made to his
Beneficiary in installments over the five year period beginning with
the year following the Participant's death. However, a Participant
may as part of his deferral election designate some other form of
payment with regard to death benefits, provided, however that in any
event all death benefit payments must be completed not later than
ten years following the Participant's death.
(d) Amounts payable in a particular Plan Year will be paid in January of
that Plan Year.
Section 8. MISCELLANEOUS PROVISIONS.
(a) No Participant of Beneficiary shall have any right to assign,
pledge, transfer or otherwise hypothecate this Plan or the payments
hereunder, in whole or in part. Benefits under this Plan will not
be subject to execution, attachment, garnishment or similar process.
-5-
<PAGE>
(b) This Plan constitutes the company's unconditional promise to pay the
amounts which become payable pursuant to the terms hereof. A
Participant's rights are solely those of an unsecured creditor.
This Plan does not give any Participant or Beneficiary a security
interest in any specific assets of the Company. Accounts are for
bookkeeping purposes only, and do not require any segregation of
assets.
(c) The Committee may in its sole discretion arrange for payment by each
Participating Employer of the amounts the Committee determines are
attributable to service with that Participating Employer.
(d) In the event of a dispute over whether a Participant is eligible for
a benefit hereunder (or the amount thereof), the Participant is
responsible for paying any costs he or she incurs in pursuing said
claim, including his or her legal expenses and attorney fees, and
the Company is responsible for payment of any costs, legal expenses
and attorney fees it incurs.
(e) This Agreement shall not be construed as a contract of employment
and does not restrict the right of the Company or any other
Participating Employer to discharge the Participant or the right of
the Participant to terminate employment.
(f) The provisions of this Agreement shall be construed and enforced
according to the laws of Minnesota.
(g) This Agreement shall be binding upon and for the benefit of the
successors and assigns of the Company, whether by way of merger,
consolidation, operation of the law, assignment, purchase or other
acquisition of substantially all of the assets or business of the
Company, and any such successor or assign shall absolutely and
unconditionally assume all of the Company's obligations hereunder.
(h) In addition to any other applicable provisions of indemnification,
the Company agrees to indemnify and hold harmless, to the extent
permitted by law, each member of the Committee (collectively
referred to herein as "Indemnitee") against any and all liabilities,
losses, costs or expenses (including legal fees) of whatsoever kind
and nature which may be imposed on, reasonably incurred by or
asserted against such person at any time by reason of such
person's services in connection with the Plan, but only if such
person did not dishonestly or in bad faith or in willful violation
of the law or regulations under which such liability, loss, cost or
expense arises. The Company shall have the right, but not the
obligation, to select counsel and control the defense and settlement
of
-6-
<PAGE>
any action against the Indemnitee for which the Indemnitee may be
entitled to indemnification under this provision.
(i) The Plan may be amended from time to time by the Company, by action
of the Board. The Board may delegate authority to amend the Plan to
the Committee.
- 7 -
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
BEMIS COMPANY, INC.
THE BANKS LISTED HEREIN
AND
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, AS AGENT
------------------------------------
U.S. $100,000,000
------------------------------------
ORIGINALLY DATED AS OF AUGUST 1, 1986
AMENDED AND RESTATED AS OF AUGUST 1, 1991
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
- ------- ----
SECTION 1. INTERPRETATIONS AND DEFINITIONS . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Accounting Terms and Determinations. . . . . . . . . . . . . . . . . . . 6
SECTION 2. THE LOANS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1 The Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . 6
2.3 Method of Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 The Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.5 Maturity of Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.6 Interest Rates.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.7 Commitment Fee; Facility Fee.. . . . . . . . . . . . . . . . . . . . . .10
2.8 Optional Termination or Reduction of Commitments.. . . . . . . . . . . .10
2.9 Mandatory Termination or Reduction of Commitments. . . . . . . . . . . .11
2.10 Optional Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . .11
2.11 General Provisions as to Payments.. . . . . . . . . . . . . . . . . . .11
2.12 Computation of Interest and Fees. . . . . . . . . . . . . . . . . . . .11
2.13 Funding Losses. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
2.14 Extension of Commitment.. . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 3. CONDITIONS OF LENDING.. . . . . . . . . . . . . . . . . . . . . . .12
3.1 All Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
3.2 Initial Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 4. CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS. . . . . . . . .14
4.1 Basis for Determining Interest Rate Inadequate.. . . . . . . . . . . . .14
4.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
4.3 Increased Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 5. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . .16
5.1 Corporate Existence and Power. . . . . . . . . . . . . . . . . . . . . .16
5.2 Corporate Authorization. . . . . . . . . . . . . . . . . . . . . . . . .16
5.3 Binding Effect.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
5.4 Financial Statements.. . . . . . . . . . . . . . . . . . . . . . . . . .16
5.5 Litigation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
5.6 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
5.7 Governmental and Other Approvals.. . . . . . . . . . . . . . . . . . . .17
5.8 Compliance with ERISA. . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 6. COVENANTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
6.1 Financial Statements.. . . . . . . . . . . . . . . . . . . . . . . . . .18
6.2 Maintenance of Existence.. . . . . . . . . . . . . . . . . . . . . . . .19
6.3 Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . . . .19
6.4 Compliance with Laws.. . . . . . . . . . . . . . . . . . . . . . . . . .19
6.5 Notice of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . .20
<PAGE>
- ii -
6.6 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
6.7 Payment of Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . .20
6.8 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
6.9 Ratio of Total Debt to Consolidated Tangible Net Worth.. . . . . . . . .20
6.10 Minimum Consolidated Tangible Net Worth.. . . . . . . . . . . . . . . .20
6.11 Negative Pledge.. . . . . . . . . . . . . . . . . . . . . . . . . . . .20
6.12 Consolidations, Mergers and Sales of Assets . . . . . . . . . . . . . .21
SECTION 7. EVENTS OF DEFAULT.. . . . . . . . . . . . . . . . . . . . . . . . .21
SECTION 8. THE AGENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
8.1 Appointment and Authorization. . . . . . . . . . . . . . . . . . . . . .23
8.2 Agent and Affiliates.. . . . . . . . . . . . . . . . . . . . . . . . . .23
8.3 Action by Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
8.4 Consultation with Experts. . . . . . . . . . . . . . . . . . . . . . . .24
8.5 Liability of Agent.. . . . . . . . . . . . . . . . . . . . . . . . . . .24
8.6 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
8.7 Failure to Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
8.8 Resignation or Removal of Agent. . . . . . . . . . . . . . . . . . . . .24
8.9 Credit Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
SECTION 9. MISCELLANEOUS.. . . . . . . . . . . . . . . . . . . . . . . . . . .25
9.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
9.2 Amendments and Waivers; Cumulative Remedies. . . . . . . . . . . . . . .25
9.3 Successors and Assigns.. . . . . . . . . . . . . . . . . . . . . . . . .26
9.4 Expenses; Documentary Taxes. . . . . . . . . . . . . . . . . . . . . . .26
9.5 Sharing of Set-Offs. . . . . . . . . . . . . . . . . . . . . . . . . . .26
9.6 Collateral.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
9.7 Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
9.8 Headings; Table of Contents. . . . . . . . . . . . . . . . . . . . . . .27
9.9 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Exhibit A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Note
Exhibit B . . . . . . . . . . . . . . . . . . . . . . . . Intentionally Omitted
Exhibit C . . . . . . . . . . . . . . . . . . . .Opinion of Counsel to Borrower
Exhibit D . . . . . . . . . . . . . . . .Opinion of Special Counsel to Borrower
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT originally dated as of August 1,
1986 and amended and restated as of August 1, 1991 among BEMIS COMPANY, INC. , a
Missouri corporation (the "Borrower"), the BANKS listed on the signature pages
hereof (the "Banks") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York
State banking corporation, as agent for the Banks (the "Agent").
WHEREAS, the Borrower, the Banks and the Agent entered into a Credit
Agreement dated as of August 1, 1986 (the "Credit Agreement"); and
WHEREAS, the Credit Agreement has been amended by the First Amendment
Agreement dated as of March 15, 1988, the Second Amendment Agreement dated as of
June 20, 1988, Amendment No. 3 dated as of March 1, 1989, the Fourth Amendment
Agreement dated as of September 1, 1990 and Amendment No. 5 dated as of August
l, 1991; and
WHEREAS, for administrative ease the parties wish to restate the Credit
Agreement, incorporating all prior amendments and to further amend certain
provisions of the Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. INTERPRETATIONS AND DEFINITIONS
1.1 DEFINITIONS. The following terms, as used herein, shall have the
following respective meanings
"Adjusted CD Rate" has the meaning set forth in Section 2.6(B) hereof.
"Adjusted Euro-Dollar Rate" has the meaning set forth in Section 2.6(C)
hereof.
"Assessment Rate" has the meaning set forth in Section 2.6(B) hereof.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Loan" means a Loan which the Borrower specifies pursuant to
Section 2.3 hereof shall be a Base Rate Loan.
"CD Base Rate" has the meaning set forth in section 2.6(B) hereof.
"CD Loan" means a Loan which the Borrower specifies pursuant to
Section 2.3 hereof shall be a CD Loan.
<PAGE>
- 2 -
"CD Margin" has the meaning set forth in Section 2.6(B) hereof.
"CD Reserve Percentage" has the meaning set forth in Section 2.6(B)
hereof.
"Code" means the Internal Revenue Code of 1954, as amended.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Section 2.8 hereof.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which would be consolidated with those of the Borrower in its
consolidated financial statements as of such date.
"Consolidated Tangible Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries minus the
following (to the extent reflected in determining such consolidated
stockholder's equity): (i) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of such business)
subsequent to March 31, 1986 in the book value of any asset owned by the
Borrower or a Consolidated Subsidiary, (ii) all investments in unconsolidated
Subsidiaries and all equity investments in Persons which are not Subsidiaries
and (iii) all unamortized debt discount and expense, unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names, copyrights,
organization or developmental expenses and other intangible items.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414(b) or 414(c) of the Code.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person under take or pay or similar contracts, (vi)
all obligations of such Person to reimburse or indemnify the issuer of a letter
of credit or Guarantee for drawings or payments thereunder, (vii) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, and (viii) all Debt of others Guaranteed by such
Person.
"Default" means any event or condition which constitutes an Event of
Default or which with the giving of notice or lapse of time, or both, would
become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
<PAGE>
- 3 -
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Domestic Lending Office) or such other office as
such Bank may hereafter designate as its Domestic Lending Office by notice to
the Borrower and the Agent; PROVIDED that any Bank may from time to time by
notice to the Borrower and the Agent designate separate Domestic Lending Offices
for its Base Rate Loans, on the one hand, and its CD Loans, on the other hand,
in which case all references herein to the Domestic Lending Office of such Bank
shall be deemed to refer to either or both of such offices, as the context may
require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks in London are open for domestic and international business
(including dealings in Dollar deposits).
"Euro-Dollar Lending Office" means, as to each Bank, its office or branch
located at its address set forth on the signature pages hereof (or identified on
the signature pages hereof as its Euro-Dollar Lending Office) or such other
branch (or affiliate) of such Bank as it may hereafter designate as its Euro-
Dollar Lending Office by notice to the Borrower and the Agent.
"Euro-Dollar Loan" means a Loan which the Borrower specifies pursuant to
Section 2.3 hereof shall be a Euro-Dollar Loan.
"Euro-Dollar Margin" has the meaning set forth in Section 2.6(C) hereof.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.6(C) hereof.
"Event of Default" has the meaning set forth in Section 7 hereof.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, PROVIDED that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
<PAGE>
- 4 -
"Fixed CD Rate" has the meaning set forth in Section 2.6(B) hereof.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or both.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person or in any manner providing for the payment of any Debt of
any other Person or otherwise protecting the holder of such Debt against loss
(whether by agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or
otherwise); provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Interest Period" means:
(l) with respect to each CD Loan the period commencing on the
date of such Loan and ending 30, 60, 90 or 180 days thereafter, as the
Borrower may elect; PROVIDED that any Interest Period which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day;
(2) with respect to each Euro-Dollar Loan the period commencing
on the date of such Loan and ending one, two, three or six months
thereafter, as the Borrower may elect; PROVIDED that (a) any Interest
Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding Euro-
Dollar Business Day; and (b) any Interest Period which begins on the last
Euro-Dollar Business Day of the calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Euro-Dollar Business Day of
a calendar month; and
(3) with respect to each Base Rate Loan, the period commencing
on the date of such Loan and ending 30 days thereafter; PROVIDED that any
Interest Period which would otherwise end on a day which is not a Euro-
Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day.
Any Interest Period which begins before the Termination Date and would otherwise
end after the Termination Date shall end on the Termination Date.
"Lien" means, with respect to any asset, (i) any lien, charge, mortgage,
security interest, pledge or other encumbrance of any kind in respect of such
asset or (ii) the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan" and "Loans" means a Domestic Loan or a Euro-Dollar Loan, or both,
as the context may require.
<PAGE>
- 5 -
"London Interbank Offered Rate" has the meaning set forth in Section
2.6(C) hereof.
"Material Subsidiary" means at any time a Subsidiary which as of such time
meets the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the Securities and Exchange Commission.
"Note" means the promissory note of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a business trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by a member of the Controlled Group
for employees of a member of the Controlled Group or (ii) maintained pursuant to
a collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which a member of the Controlled Group
is then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Reference Bank" means Morgan Guaranty Trust Company of New York.
"Refunding Loan" means a Loan which, after application of the proceeds
thereof, results in no net increase in the outstanding principal amount of Loans
made by any Bank.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks holding at least 66-2/3% of the
aggregate unpaid principal amount of the Notes or, if no Loans are at the time
outstanding hereunder, Banks having at least 66-2/3% of the aggregate amount of
the Commitments.
"Subsidiary" means any corporation or other entity of which capital stock
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions is at the
time directly or indirectly owned by the Borrower.
<PAGE>
- 6 -
"Termination Date" means August 1, 1996, or such date to which the
Commitment is extended pursuant to Section 2.14.
"Unfunded Vested Liabilities" means, with respect to any Plan, the amount,
if any, by which the present value of all vested benefits under such Plan
exceeds the fair market value of all Plan assets allocable to such benefits, as
determined on the most recent valuation date of such Plan, but only to the
extent that excess -represents a potential liability of the Borrower or any
member of the Controlled Group to the PBGC or to such Plan under Title IV of
ERISA.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated Subsidiary
all of the shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Borrower.
1.2 ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Bank.
SECTION 2. THE LOANS.
2.1 THE LOANS. From the date hereof, to and excluding the Termination
Date, each Bank severally agrees, on the terms and conditions contained in this
Agreement, to lend to the Borrower from time to time amounts not exceeding in
the aggregate at any one time outstanding the amount of its Commitment. Each
Loan under this Section 2.1 shall be in the principal amount of $1,000,000 or
any multiple thereof (except that any such Loan may be in the aggregate amount
of the unused Commitments) and shall be made by the several Banks ratably in
proportion to their respective Commitments. During such period and within the
foregoing limits, the Borrower may borrow under this Section 2.1, repay or
prepay Loans and reborrow under this Section 2.1.
2.2 [Intentionally Omitted.]
2.3 METHOD OF BORROWING
(A) With respect to each Loan made pursuant to Section 2.1 hereof, the
Borrower shall give the Agent notice (a "Notice of Borrowing") at least one
Domestic Business Day before borrowing a Domestic Loan, or at least three Euro-
Dollar Business Days before borrowing a Euro-Dollar Loan, specifying:
(i) the date of such Loan, which shall be a Domestic Business
Day in the case of a Domestic Loan and a Euro-Dollar Business Day in the
case of a Euro-Dollar Loan;
(ii) the principal amount of such Loan;
<PAGE>
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(iii) whether the Loan is to be a Base Rate Loan, a CO Loan or a
Euro-Dollar Loan; and
(iv) in the case of a Fixed Rate Loan, the duration of the
Interest Period applicable thereto, subject to the definition of Interest
Period.
(B) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's ratable share of the
Loan specified therein and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(C) Not later than 11:00 am. (New York City time) on the date of each
Loan, each Bank shall (except as provided in Section 2.3(D)) make available its
ratable share of such Loan, in Federal or other funds immediately available in
New York City, to the Agent at its address set forth on the signature pages
hereof or at such other address as it may hereafter designate by notice to the
Borrower and the Banks and, unless the Agent determines that any applicable
condition specified in Section 4 has not been satisfied, the Agent will promptly
make the funds so received from the Banks available to the Borrower at the
Agent's aforesaid address.
(D) If any Bank makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank, such
Bank shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the Agent as
provided in Section 2.3(C), or remitted by the Borrower to the Agent as provided
in Section 2.11, as the case may be.
2.4 THE NOTES.
(A) The Loans of each Bank shall be evidenced by a single Note payable
to the order of such Bank for the account of its applicable lending office. Such
Note shall be dated on or before the date of the first such Loan, shall set
forth the amount of such Bank's Commitment as the maximum principal amount
thereof and shall have the blanks therein appropriately completed.
(B) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type be evidenced by a separate Note in an amount
equal to the aggregate unpaid principal amount of such Loans. Each such Note
shall be in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
type. Each reference in this Agreement to the "Note" of such Bank shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(C) Upon receipt of each Bank's Note pursuant to Section 3.2(a), the
Agent shall mail such Note to such Bank. Each Bank shall record and, prior to
any transfer of its Note, shall endorse on the schedules forming a part thereof
appropriate notations evidencing the date, the amount and the maturity of each
Loan to be evidenced by such Note and the date and amount of each payment of
<PAGE>
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principal made by the Borrower with respect thereto; PROVIDED that failure to
make any such endorsement or notation shall not affect the obligations of the
Borrower hereunder or under any Note. Each Bank is hereby irrevocably authorized
by the Borrower so to endorse the Notes and to attach to and make a part of any
Note a continuation of any such schedule as and when required.
2.5 MATURITY OF LOANS. Each Loan shall mature, and the principal
amount thereof shall be due and payable, on the last day of the Interest Period
applicable to such Loan.
2.6 INTEREST RATES.
(A) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate. Such interest shall be
payable for each Interest Period on the last day thereof. Overdue principal of
and, to the extent permitted by law, overdue interest on the Base Rate Loans
shall bear interest for each day until paid at a rate per annum equal to the sum
of 1% plus the otherwise applicable rate for such day.
(B) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each Interest Period applicable thereto, at a rate per annum
equal to the applicable Fixed CD Rate. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than 90 days, at intervals of 90 days after the first day thereof. Any overdue
principal of and, to the extent permitted by law, overdue interest on the CD
Loans shall bear interest for each day until paid at a rate per annum equal to
the sum of 1% plus the rate applicable to Base Rate Loans for such day.
The "Fixed CD Rate" applicable to any CD Loan for any Interest Period
means a rate per annum equal to the sum of the CD Margin plus the applicable
Adjusted CD Rate.
The "CD Margin" means 1/2 of 1%.
The "Adjusted CD Rate" applicable to any Interest Period means a rate per
annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [---------------] + AR
[ l - CDRP ]
ACDR = Adjusted CD Rate for such Interest Period
CDBR = CD Base Rate for such Interest Period
AR = Assessment Rate
CDRP = CD Reserve Percentage
- ---------------------
*The amount in brackets being rounded upwards, if necessary, to the next higher
1/100 of 1%.
<PAGE>
- 9 -
The "CD Base Rate" means for any Interest Period the prevailing per annum
rate of interest (rounded upward, if necessary, to the next higher (1/100 of 1%)
determined by the Agent to be the average of bid rates quoted to the Reference
Bank at 10:00 am. (New York City time) (or as soon thereafter as is practicable)
on the first day of such Interest Period by two or more New York certificate of
deposit dealers of recognized standing selected by the Reference Bank for the
purchase at face value from the Reference Bank of its certificates of deposit in
an amount comparable to the principal amount of the CD Loan made by the
Reference Bank to which such Interest Period applies and with a maturity
comparable to such Interest Period.
The "CD Reserve Percentage" means for any day, that percentage, expressed
as a decimal, which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion Dollars in respect
of new non-personal time deposits in Dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Fixed CD Rate shall be adjusted automatically on and as of the effective
date of any change in the CD Reserve Percentage.
The "Assessment Rate" for any Interest Period means a rate per annum
(rounded upwards, if necessary, to the next higher 1/100 of 1%) determined by
the Agent to be the rate per annum equal to (i) the gross annual assessment rate
payable to the Federal Deposit Insurance Corporation (or any successor) by the
Reference Bank for insuring the Reference Bank's domestic Dollar deposits less
(ii) the most recently determined credit against such assessments, expressed as
an annual rate, available under applicable law to the Reference Bank, in each
case as determined by the Reference Bank as of the first day of such Interest
Period.
(C) Each Euro-Dollar Loan shall bear interest on the unpaid principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Euro-Dollar Margin plus the applicable Adjusted Euro-
Dollar Rate. Such interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
The "Adjusted Euro-Dollar Rate" applicable to any Interest Period means a
rate per annum equal to the quotient obtained (rounded upwards, if necessary, to
the next higher (1/100 of 1%) by dividing (i) the applicable London Interbank
Offered Rate by (ii) 1.00 MINUS the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the rate determined by the Agent to be the average of the rates per annum
at which deposits in Dollars are offered to the Reference Bank in the London
interbank market at approximately 11:00 am. (London Time) two Euro-Dollar
business Days prior to the first day of such Interest Period in an amount
approximately equal to the aggregate unpaid principal amount of the Euro-Dollar
Loan made by the
<PAGE>
- 10 -
Reference Bank to which such Interest Period is to apply and for a period of
time comparable to such Interest Period.
The "Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted Euro-Dollar Rate shall be adjusted automatically
on and as of the effective date of any change in the Euro-Dollar Reserve
Percentage.
The "Euro-Dollar Margin" means 3/8 of 1%.
Any overdue principal of and, to the extent permitted by law, overdue
interest on, any Euro-Dollar Loan shall bear interest payable on demand, for
each day from the date payment thereof was due to the date of actual payment, at
a rate per annum equal to 1% plus the Euro-Dollar Margin plus the quotient
obtained (rounded upwards, if necessary, to the next higher 1/100 of 1%) by
dividing (i) the interest rate per annum at which one day (or, if such amount
due remains unpaid more than three Euro-Dollar Business Days, then for such
other period of time as the Agent may elect which shall in no event be longer
than six months) deposits in Dollars in an amount approximately equal to the
amount of such overdue payment due to the Reference Bank are offered to the
Reference Bank in the London Interbank market for the applicable period
determined as provided above by (ii) 1.00 MINUS the Euro-Dollar Reserve
Percentage.
(D) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by telex or cable of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
2.7 COMMITMENT FEE; FACILITY FEE. The Borrower shall pay to the Agent
for the account of each Bank (a) a commitment fee computed at the rate of 1/8 of
1% per annum on the daily average unused amount of such Bank's Commitment and
(b) a facility fee computed at the rate of 1/8 of 1% per annum on the total
amount of such Bank's Commitment, regardless of usage. Such fees shall accrue
from the date hereof to and including the Termination Date and shall be payable
quarterly on the last day of each March, June, September and December.
2.8 OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower
shall have the right upon at least five Domestic Business Days' prior written
notice to the Agent, to terminate or reduce the unused portion of the
Commitments. Any such reduction of the Commitments shall be in the minimum
amount of $1,000,000. The accrued commitment and facility fees with respect to
the terminated Commitments shall be payable to the Agent for the account of the
Banks on the effective date of such termination.
<PAGE>
- 11 -
2.9 MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS. The Commitments
shall terminate on the Termination Date, and any Loans then outstanding
(together with accrued interest thereon) shall be due and payable on such date.
2.10 OPTIONAL PREPAYMENTS.
(A) The Borrower may, upon at least one Domestic Business Day's notice
to the Agent, prepay the Base Rate Loans without premium or penalty in whole at
any time or from time to time in part in amounts aggregating $1,000,000 or any
multiple thereof by paying the principal amount being prepaid together with
accrued interest thereon to the date of prepayment.
(B) Except as provided in Section 4.2 hereof, the Borrower may not
prepay all or any portion of the principal amount of any Fixed Rate Loan prior
to the maturity thereof.
(C) Upon receipt of a notice of repayment pursuant to this
Section 2.10, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such repayment and such notice
shall not thereafter be revocable by the Borrower.
2.11 GENERAL PROVISIONS AS TO PAYMENTS. The Borrower shall make each
payment of principal of, and interest on, the Loans and of fees hereunder not
later than 11:00 a.m. (New York City time) on the date when due in funds
immediately available in New York City to the Agent at its address set forth on
the signature pages hereof or at such other address as it may hereafter
designate by notice to the Borrower and the Banks for the account of (i) the
Domestic Lending Office of each Bank in the case of Domestic Loans or (ii) the
Euro-Dollar Lending Office of each Bank in the case of Euro-Dollar Loans. The
Agent will promptly distribute to each Bank its ratable share of each such
payment received for the account of each Bank. Whenever any payment of
principal of, or interest on, the Domestic Loans or of any fee shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless as a result
thereof it would fall in the next calendar month, in which case it shall be
advanced to the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
shall be payable for such extended time.
2.12 COMPUTATION OF INTEREST AND FEES. Interest on Loans made at the
Prime Rate shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and paid for actual days elapsed. All other interest and fees shall
be computed on the basis of a year of 360 days and paid for actual days elapsed.
2.13 FUNDING LOSSES. If the Borrower makes any payment of principal
with respect to any Fixed Rate Loan (pursuant to Section 4 or Section 7 or
otherwise) on any day other than the last day of an Interest Period applicable
to such Loan, or the end of an applicable period fixed pursuant to the last
paragraph of Section 2.6(C) hereof, or if the Borrower fails to borrow any Fixed
Rate Loan after notice has been given to the Agent in accordance with
Section 2.3 hereof, the Borrower shall
<PAGE>
- 12 -
reimburse each Bank on demand for any resulting loss or expense incurred by it
including (without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties; PROVIDED that such Bank shall have
delivered to the Borrower a certificate as to the amount of such loss, which
certificate shall be conclusive in the absence of manifest error.
2.14 EXTENSION OF COMMITMENT. Not more than 90 nor less than 60 days
before the then current Termination Date, the Borrower may request in writing to
the Agent that the Banks extend the Commitment by an additional period of one
year. The Agent shall promptly transmit such request to the Banks. If the
Banks agree to extend the Commitment as herein provided, they shall so notify
the Agent in writing not less than 30 days before the Termination Date. The
Agent shall promptly notify the Borrower of the decision of the Banks, whereupon
the Commitment shall be extended for an additional period of one year, and the
term "Termination Date" shall thereafter refer to the date that the Commitment,
as so extended, will terminate. If the Commitment is not extended as provided
in this Section 2.14, this Agreement will automatically terminate on the then
current Termination Date without further action by the Borrower, the Agent or
the Banks.
SECTION 3. CONDITIONS OF LENDING.
The obligation of the Banks to make each Loan hereunder is subject to the
performance by the Borrower of all its obligations under this Agreement and to
the satisfaction of the following further conditions:
3.1 ALL LOANS. In the case of each Loan hereunder (except for Loans
made pursuant to Section 4 hereof), including the initial Loans:
(a) receipt by the Agent of the Notice of Borrowing as
required by Section 2.3 hereof;
(b) the fact that immediately after the making of the Loan no
Default or Event of Default shall have occurred and be continuing;
(c) the fact that the representations and warranties contained
in this Agreement (except in the case of a Refunding Loan, the
representation and warranty set forth in Section 5.4 hereof as to any
material adverse change which has theretofore been disclosed in writing by
the Borrower to the Banks) are true on and as of the date of the Loan with
the same force and effect as if made on and as of such date; and
(d) receipt by the Agent or the Banks of such other documents,
evidence, materials and information with respect to the matters
contemplated hereby as the Agent or the Banks may reasonably request.
Each Notice of Borrowing and borrowing by the Borrower hereunder shall be deemed
to be a representation and warranty by the Borrower on the date of such
borrowing as to the facts specified in (b) and (c) above.
<PAGE>
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3.2 INITIAL LOANS. In the case of the initial Loans:
(a) receipt by the Agent for the account of each Bank of a
duly executed Note for such Bank;
(b) receipt by the Agent of an opinion of George W. Andrews,
Esq., Vice President, General Counsel and Secretary of the Borrower dated
the date of such Loans and substantially in the form of Exhibit C hereto;
(c) receipt by the Agent of an opinion of Towne, Dolgin,
Sawyier & Horton, special counsel to the Banks, substantially in the form
of Exhibit D hereto;
(d) receipt by the Agent of certified copies of all corporate
action taken by the Borrower to authorize the execution, delivery and
performance of this Agreement and the Notes, and the Loans hereunder and
such other corporate documents and other papers as the Agent may
reasonably request;
(e) receipt by the Agent of a certificate of a duly authorized
officer of the Borrower as to the incumbency, and setting forth a specimen
signature, of each of the persons (i) who has signed this Agreement on
behalf of the Borrower; (ii) who will sign the Notes on behalf of the
Borrower; and (iii) who will, until replaced by other persons duly
authorized for that purpose, act as the representatives of the Borrower
for the purpose of signing documents in connection with this Agreement and
the transactions contemplated hereby; and
(f) receipt by the Agent of a certificate of a duly authorized
officer of the Borrower to the effect set forth in Section 3.1(b) and
3.1(c) hereof.
<PAGE>
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SECTION 4. CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS.
4.1 BASIS FOR DETERMINING INTEREST RATE INADEQUATE. If with respect to
any Interest Period (i) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered to the Reference Bank in the relevant
market for such Interest Period, or (ii) Banks holding Notes evidencing at least
50% in aggregate principal amount of the Fixed Rate Loans (or the Commitments,
if no Fixed Rate Loans are then outstanding) advise the Agent that the London
Interbank Offered Rate or the CD Base Rate, as the case may be, as determined by
the Agent will not adequately and fairly reflect the cost to such Banks of
maintaining or funding their Euro-Dollar Loans or CD Loans, as the case may be,
for such Interest Period, the Agent shall forthwith give notice thereof to the
Borrower, whereupon the obligations of the Banks to make CD Loans or Euro-Dollar
Loans, as the case may be, shall be suspended until the Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist.
Unless the Borrower notifies the Agent at least two Domestic Business Days
before the date of any Fixed Rate Loan for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Loans
shall instead by made as Base Rate Loans.
4.2 ILLEGALITY. If, after the date of this Agreement, the adoption of
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain
or fund its Euro-Dollar Loans and such Bank shall so notify the Agent, the Agent
shall forthwith so notify the other Banks and the Borrower, whereupon such
Bank's obligation to make Euro-Dollar Loans shall be suspended until such Bank
notifies the Agent and the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist. Before giving any notice to the
Agent pursuant to this Section 4.2, such Bank will designate a different Euro-
Dollar Lending Office if such designation will avoid the need for giving such
notice and will not, in the sole judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon. Unless the Borrower notifies such
Bank and the Agent to the contrary within two Euro-Dollar Business Days after
receiving a notice from the Agent pursuant to this Section, the Borrower shall,
concurrently with prepaying each such Euro-Dollar Loan, borrow a Base Rate Loan
in an equal principal amount for an Interest Period coincident with the
remaining term of the Interest Period applicable to such Euro-Dollar Loan.
4.3 INCREASED COSTS. (A) If after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof or compliance by any Bank (or its Euro-Dollar Lending Office) with any
request
<PAGE>
- 15 -
or directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(l) shall subject such Bank (or its Euro-Dollar Lending
Office) to any tax, duty or other charge with respect to its obligation to
make Fixed Rate Loans, its Fixed Rate Loans, or its Notes, or shall change
the basis of taxation of payments to such Bank (or its Euro-Dollar Lending
Office) of the principal of or interest on its Fixed Rate Loans or in
respect of any other amounts due under this Agreement, in respect of its
Fixed Rate Loans or its obligation to make Fixed Rate Loans, (except for
changes in the rate of tax on the overall net income of the Bank or its
Euro-Dollar Lending Office imposed by the jurisdiction in which such
Bank's principal executive office or Euro-Dollar Lending Office is
located); or
(2) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System, but excluding any included in an applicable
Reserve Percentage), special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, such
Bank's Euro-Dollar Lending Office or shall impose on such Bank (or its
Euro-Dollar Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other condition
affecting its obligation to make Fixed Rate Loans, its Fixed Rate Loans or
its Notes; and the result of any of the foregoing is to increase the cost
to such Bank (or its Euro-Dollar Lending Office) of making or maintaining
any Fixed Rate Loan, or to reduce the amount of any sum received or
receivable by such Bank (or its Euro-Dollar Lending Office) under this
Agreement or under its Notes with respect thereto, by an amount deemed by
such Bank to be material, then, within IS days after demand by such Bank
(with a copy to the Agent), the Borrower agrees to pay for the account of
such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction. Each Bank will promptly notify the
Borrower and the Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation
pursuant to this Section 4.3 and will designate a different Domestic
Lending Office or Euro-Dollar Lending Office, as the case may be, if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole judgment of such Bank, be otherwise
disadvantageous to such Bank.
(B) If after the date hereof, any Bank shall have determined that the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank (or
its Domestic Lending Office or Euro-Dollar Lending Office, as the case may be)
with any request or directive regarding capital adequacy (whether or not having
the force of any law) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on such Bank's
capital as a consequence of its obligations hereunder to a level below that
which such Bank could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time to
time, within 15 days after demand by such Bank (with a copy to the Agent), the
<PAGE>
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Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such reduction.
(C) A certificate of any Bank claiming compensation under this Section
4.3 and setting forth the additional amount or amounts to. be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, such Bank may use any reasonable averaging and attribution methods.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks that:
5.1 CORPORATE EXISTENCE AND POWER. The Borrower and each Subsidiary is
a corporation duly organized and validly existing, and the Borrower and each
Material Subsidiary is in good standing, under the laws of the State of its
incorporation, has all power and authority to carry on its business as now being
conducted and to own its properties and is duly licensed or qualified and in
good standing as a foreign corporation in each other jurisdiction in which its
properties are located or in which failure to qualify would materially and
adversely affect the conduct of its business or the enforceability of
contractual rights of the Borrower.
5.2 CORPORATE AUTHORIZATION. The execution, delivery and performance
by the Borrower of this Agreement and the Notes are within the Borrower's
corporate power, have been duly authorized by all necessary corporate action and
will not contravene, or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or by-laws of the
Borrower, or of any judgment, order, decree, agreement or instrument binding on
the Borrower or result in the creation of any Lien upon any of its property or
assets.
5.3 BINDING EFFECT. This Agreement constitutes, and the Notes when duly
executed on behalf of the Borrower and delivered in accordance with this
Agreement will constitute, the valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms.
5.4 FINANCIAL STATEMENTS.
(A) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at December 31, 1985 and the related consolidated statements of
income and retained earnings and changes in financial position of the Borrower
and its Consolidated Subsidiaries for the fiscal year then ended, certified by
Price, Waterhouse & Company, certified public accountants, and set forth in the
Borrower's 1985 Form 10-K a copy of which has been delivered to each of the
Banks, fairly present in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries at such date and the consolidated results of
operations for such fiscal year.
<PAGE>
- 17 -
(B) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at March 31, 1986 and the related consolidated
statements of earnings and changes in financial position of the Borrower and its
Consolidated Subsidiaries for the three months then ended, set forth in the
Borrower's quarterly report for the fiscal quarter ended March 31, 1986 as filed
with the Securities and Exchange Commission on Form 10-Q, a copy of which has
been delivered to each of the Banks, fairly present in accordance with generally
accepted accounting principles, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as at such date and the consolidated
results of operations for such period.
(C) No material adverse change has occurred in the financial position,
results of operations or business of the Borrower and its Consolidated
Subsidiaries since March 31, 1986.
5.5 LITIGATION. There are no actions, suits or proceedings pending
against or, to the knowledge of the Borrower, threatened against or affecting,
the Borrower or any Subsidiary in any court or before or by any governmental
department, agency or instrumentality, an adverse decision in which could
materially and adversely affect the financial condition or business of the
Borrower or the ability of the Borrower to perform its obligations under this
Agreement or the Notes.
5.6 TAXES. The Borrower has filed (or has obtained extensions of the
time by which it is required to file) all United States federal income tax
returns and all other material tax returns required to be filed by it and has
paid all taxes shown due on the returns so filed as well as all other taxes,
assessments and governmental charges which have become due, except such taxes,
if any, as are being contested in good faith and as to which adequate reserves
have been provided.
5.7 GOVERNMENTAL AND OTHER APPROVALS. No approval, consent or
authorization of or filing or registration with any governmental authority or
body is necessary for the execution, delivery or performance by the Borrower of
this Agreement or the Notes or for the performance by the Borrower of any of the
terms or conditions hereof or thereof, except for such approvals, consents or
authorizations (copies of which have been delivered to the Banks) as have been
obtained and are in full force and effect.
5.8 COMPLIANCE WITH ERISA. Each member of the Controlled Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code, and has not
incurred liabilities which are due and payable aggregating in excess of
$5,000,000 to the PBGC or a Plan under Title IV of ERISA.
<PAGE>
- 18 -
SECTION 6. COVENANTS.
So long as the Commitments shall be in effect or any Notes are
outstanding, the Borrower agrees that:
6.1 FINANCIAL STATEMENTS. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as at the end of
such year, and consolidated statements of income and retained earnings and
changes in financial position of the Borrower and its Consolidated
Subsidiaries for such year, setting forth in each case in comparative form
corresponding consolidated figures from the preceding fiscal year, all
reported on in a manner acceptable to the Securities and Exchange
Commission by Price, Waterhouse & Company or other independent certified
public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such quarter and the related
consolidated statements of income and retained earnings and changes in
financial position of the Borrower and its Consolidated Subsidiaries for
such quarter and for the portion of the Borrower's fiscal year ended at
the end of such quarter setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of the
Borrower's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or the chief
accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower
(i) setting forth in reasonable detail the calculations required to
establish whether the Borrower was in compliance with the requirements of
Sections 6.9 and 6.10 on the date of such financial statements and (ii)
stating whether there exists on the date of such certificate any Default
or Event of Default and, if any Default or Event of Default exists,
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) to
the effect that nothing has come to their attention to cause them to
believe that there existed on the date of such statements any Default or
Event of Default and (ii) confirming the calculations set forth in the
officer's certificate delivered simultaneously therewith pursuant to
clause (c) above;
<PAGE>
- 19 -
(e) forthwith upon the occurrence of any Default or Event of
Default, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the details thereof and
the action which the Borrower is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) Promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i)
receives notice of complete or partial withdrawal liability or liabilities
aggregating in excess of $5,000,000 under Title IV of ERISA, a copy of
such notice; or (ii) receives notice from the PBGC under Title IV of ERISA
of an intent to terminate or appoint a trustee to administer any Plan or
Plans having aggregate Unfunded Vested Liabilities in excess of
$5,000,000, a copy of such notice;
(i) if at any time the value of all "margin stock" (as defined
in Regulation U) owned by the Borrower and its Consolidated Subsidiaries
exceeds (or would, following application of the proceeds of an intended
Loan hereunder, exceed) 25% of the value of the total assets of the
Borrower and its Consolidated Subsidiaries, in each case as reasonably
determined by the Borrower, prompt notice of such fact and, promptly upon
the request of any Bank, a duly completed statement of purpose on Form U-l
for each Bank together with such other information or documents as each
Bank may be required to obtain under said Regulation U in connection with
this Agreement; and
(j) from time to time such additional information regarding
the financial position or business of the Borrower as the Agent at the
request of any Bank may reasonably request.
6.2 MAINTENANCE OF EXISTENCE. Except as permitted by Section 6.12
hereof, the Borrower will, and will cause each Subsidiary to, preserve and
maintain its corporate existence and all of its rights, privileges and
franchises necessary or desirable in the normal conduct of its business, and
will conduct its business in a regular manner.
6.3 MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
Subsidiary to, keep all of its properties necessary, in the judgment of the
Board of Directors of the Borrower, in its business in good working order and
condition, ordinary wear and tear excepted, and will permit representatives of
the Banks to inspect such properties, and to examine and make extracts from the
books and records of the Borrower or any Subsidiary, during normal business
hours.
6.4 COMPLIANCE WITH LAWS. The Borrower will, and will cause each
Subsidiary to, comply with the requirements of all applicable laws, rules,
regulations and orders of any governmental body or
<PAGE>
- 20 -
regulatory agency having jurisdiction, a breach of which could have a material
adverse effect on the consolidated financial condition or the business taken as
a whole of the Borrower and its Subsidiaries, except where contested in good
faith and by proper proceedings.
6.5 NOTICE OF PROCEEDINGS. The Borrower will promptly give notice in
writing to each Bank of all litigation, arbitral proceedings and regulatory
proceedings affecting the Borrower or any Subsidiary or the property of the
Borrower or any Subsidiary, except litigation or proceedings which, if adversely
determined, could not materially and adversely affect the consolidated financial
condition or the business taken as a whole of the Borrower and its Subsidiaries.
6.6 USE OF PROCEEDS. No part of the proceeds of any Loan hereunder
will be used to purchase or carry any margin stock or to extend credit to others
for the purpose of purchasing or carrying any margin stock. If requested by any
Bank, the Borrower will furnish to any Bank in connection with any Loan
hereunder a statement in conformity with the requirements of Federal Reserve
Form U-l referred to in Regulation U.
6.7 PAYMENT OF TAXES. The Borrower will, and will cause each
Subsidiary to, pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its property
prior to the date on which penalties attach thereto, except that the Borrower or
any Subsidiary will not be required hereby to pay any such tax, assessment,
charge or levy the payment of which is being contested in good faith and by
proper proceedings and against which it is maintaining adequate reserves.
6.8 INSURANCE. The Borrower will, and will cause each Subsidiary to,
maintain insurance with responsible companies in such amounts and against such
risks as is usually carried by owners of similar businesses and properties in
the same general areas in which the Borrower and its Subsidiaries operate.
6.9 RATIO OF TOTAL DEBT TO CONSOLIDATED TANGIBLE NET WORTH. The
Borrower will not permit consolidated Debt at any time to exceed 150% of
Consolidated Tangible Net Worth.
6.10 MINIMUM CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not
permit Consolidated Tangible Net Worth at any time to be less than the greater
of (i) $133,000,000 or (ii) 80% of Consolidated Tangible Net Worth as at the end
of the most recently completed fiscal year of the Borrower.
6.11 NEGATIVE PLEDGE. Neither the Borrower nor any Subsidiary will
create, assume or suffer to exist any Lien securing Debt on any asset now owned
or hereafter acquired by it, except for:
(a) Liens existing on the date hereof securing Debt
outstanding on the date hereof;
<PAGE>
- 21 -
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, PROVIDED that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged into or consolidated with the Borrower or
a Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Subsidiary and not created in contemplation
of such acquisition;
(f) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of
the foregoing clauses of this Section, PROVIDED that such Debt is not
increased and is not secured by any additional assets;
(g) any Lien arising pursuant to any order of attachment,
distraint or similar legal process arising in connection with court
proceedings so long as the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith by appropriate proceedings; and
(h) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in aggregate principal amount not to exceed 4%
of the consolidated assets of the Borrower and the Consolidated
Subsidiaries at any time outstanding.
6.12 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Borrower will not
(i) consolidate or merge with or into any other Person unless the Borrower shall
be the surviving corporation or (ii) sell, lease or otherwise transfer (whether
in one transaction or in a series of transactions) all or any substantial part
of its assets to any other Person. The Borrower will not permit any Subsidiary
to consolidate with, merge with or into or sell, lease or otherwise transfer
(whether in one transaction or in a series of transactions) all or any
substantial part of its assets to any Person other than the Borrower or a
Wholly-Owned Consolidated Subsidiary.
For purposes of this Section 6.12, "substantial part" means l5% or more of
the consolidated assets of the Borrower and the Consolidated Subsidiaries.
SECTION 7. EVENTS OF DEFAULT.
If any one or more of the following events ("Events of Default") shall
have occurred and be continuing:
(a) the Borrower shall fail to pay any principal of any Note
when due; or
<PAGE>
- 22 -
(b) the Borrower shall fail to pay any interest on any Note,
any commitment fee or facility fee or any other amount due hereunder or
under the Notes when due and such failure shall continue for five
consecutive days; or
(c) the Borrower shall fail to perform or observe any of the
covenants contained in Section 6.1(e) or Sections 6.9 to 6.12 (inclusive)
hereof; or
(d) any representation and warranty made by the Borrower
herein or in any instrument or document delivered pursuant hereto shall
prove to be incorrect or misleading in any material respect upon the date
when made; or
(e) the Borrower shall fail to perform any term, covenant or
agreement contained herein (other than those specified in clauses (a), (b)
or (c) above) for 30 days after written notice thereof has been given to
the Borrower by the Agent at the request of any Bank; or
(f) the Borrower or any Subsidiary shall (i) fail to pay any
Debt (other than the Notes) when due or interest thereon and such failure
shall continue for more than any applicable period of grace with respect
thereto, or (ii) fail to observe or perform any term, covenant or
agreement contained in any agreement or instrument (other than this
Agreement or the Notes) by which it is bound evidencing or securing or
relating to any Debt, if the effect thereof is to permit (or, with the
giving of notice or lapse of time or both, would permit) the holder or
holders thereof or of any obligations issued thereunder or a trustee or
trustees acting on behalf of such holder or holders to cause acceleration
of the maturity thereof or of any such obligation; PROVIDED, that the
aggregate amount of Debt with respect to which any such event or condition
shall have occurred shall equal or exceed $1,000,000; or
(g) the Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay is debts as they become due, or shall take any
corporate action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief
<PAGE>
- 23 -
shall be entered against the Borrower or any Material Subsidiary under the
federal bankruptcy laws as now or hereafter in effect; or
(i) the Borrower or any other member of the Controlled Group
shall fail to pay when due any amount or amounts aggregating in excess of
$5,000,000 which it shall have become liable to pay to the PBGC or to a
Plan under Title IV of ERISA; or notice of intent to terminate a Plan or
Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000
shall be filed under Title IV of ERISA by any member of the Controlled
Group, any plan administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate or
to cause a trustee to be appointed to administer any Plan or Plans having
aggregate Unfunded Vested Liabilities in excess of $5,000,000 or a
proceeding shall be instituted by a fiduciary of any Plan against any
member of the Controlled Group to enforce Section 515 of ERISA with
respect to any amount or amounts aggregating in excess of $5,000,000 and
such proceeding shall not have been dismissed within 30 days thereafter;
or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Plan or Plans having aggregated
Unfunded Vested Liabilities in excess of $5,000,000 must be terminated; or
(j) judgments or orders for the payment of money in excess of
$1,000,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary and such judgments or orders shall continue unsatisfied and
unstayed for a period of 30 days;
then, and in every such event, (l) in the case of any of the Events of
Default specified in paragraphs (g) or (h) above, the Commitments shall
thereupon automatically be terminated and the principal of and accrued
interest on the Notes shall automatically become due and payable without
presentment, demand, protest or other notice or formality of any kind, all
of which are hereby expressly waived and (2) in the case of any other
Event of Default specified above, the Agent shall, if requested by the
Required Banks, by notice in writing to the Borrower, terminate the
Commitments hereunder, if still in existence, and they shall thereupon be
terminated, and the Agent shall, if requested by the Required Banks, by
notice in writing to the Borrower, declare the Notes and all other sums
payable under this Agreement to be, and the same shall thereupon forthwith
become, due and payable without presentment, demand, protest or other
notice or formality of any kind, all of which are hereby expressly waived.
SECTION 8. THE AGENT.
8.1 APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the Notes as are delegated to the Agent by
the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.
8.2 AGENT AND AFFILIATES. Morgan Guaranty Trust Company of New York
shall have the same rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though it were not the
Agent, and Morgan Guaranty Trust Company of New
<PAGE>
- 24 -
York and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if it were not the Agent hereunder.
8.3 ACTION BY AGENT. The obligations of the Agent hereunder are only
those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Section 7 hereof.
8.4 CONSULTATION WITH EXPERTS. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
8.5 LIABILITY OF AGENT. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable for any action taken or not taken
by it in connection herewith (i) with the consent or at the request of the
Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (a) any statement, warranty or representation made in connection with
this Agreement or any Borrowing hereunder; (b) the performance or observance of
any of the covenants or agreements of the Borrower; (c) the satisfaction of any
condition specified in Section 3, except receipt of items required to be
delivered to the Agent; or (d) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties. As to any matters not
expressly provided for by this Agreement, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Required Banks, and such instructions of the Required
Banks and any action taken or failure to act pursuant thereto shall be binding
on all of the Banks.
8.6 INDEMNIFICATION. Each Bank shall, ratably in accordance with its
Commitment, indemnify the Agent (to the extent not reimbursed by the Borrower)
against any cost, expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from the Agent's gross
negligence or willful misconduct) that the Agent may suffer or incur in
connection with this Agreement or any action taken or omitted by the Agent
hereunder.
8.7 FAILURE TO ACT. Except for action expressly required of the Agent
hereunder the Agent shall in all cases be fully justified in failing or refusing
to act hereunder unless it shall be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
8.8 RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Banks and the Borrower and the Agent may be
removed at any time with or without cause by the
<PAGE>
-25 -
Required Banks with the prior written consent of the Borrower. Upon any such
resignation or removal, the Required Banks shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Banks and shall have accepted such appointment within 30 days after the
retiring Agent's giving of notice of resignation or the Required Bank's removal
of the retiring Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a bank which has an office in New
York, New York. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Section 8 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as the Agent.
8.9 CREDIT DECISION. Each Bank acknowledges that it has, independently
and without reliance upon the Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance upon the Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
any action under this Agreement.
SECTION 9. MISCELLANEOUS.
9.1 NOTICES. Unless otherwise specified herein all notices, requests,
demands or other communications to or from the parties hereto shall be deemed to
have been duly given and made when sent by United States mail, certified, return
receipt requested or by telegram, and, in the case of a telex, when a telex is
sent and the appropriate answer back received, provided that notices to the
Agent pursuant to Sections 2.3 and 2.10 hereof which are given otherwise than by
telex shall not be effective until received by the Agent. Any such notice,
request, demand or communication shall be delivered or addressed as follows:
(a) if to any party hereto, to it at its address or telex
number set forth on the signature pages hereof; and
(b) if to any holder of a Note, other than a Bank, to it at
the address or telex number of the original payee thereof or at the
address or telex number of any subsequent holder if notice of the transfer
of such Note and the name and the address or telex number of such
subsequent holder shall have been given to the Agent and the Borrower;
or at such other address or telex number as any party hereto or any
subsequent holder may designate by written notice to the Agent and the
Borrower.
9.2 AMENDMENTS AND WAIVERS; CUMULATIVE REMEDIES.
(a) None of the terms of this Agreement may be waived, altered
or amended except by an instrument in writing duly executed by the
Borrower and the Required Banks
<PAGE>
- 26 -
(and, if the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall, unless signed by
all the Banks, (i) increase the Commitment of any Bank or subject any Bank
to any additional obligation, (ii) reduce the principal of or rate of
interest on the Notes or any fees hereunder, (iii) postpone the date fixed
for any payment of principal of or interest on the Notes or any fees
hereunder or (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks,
which shall be required for the holders of Notes or the Banks or any of
them to take any action hereunder.
(b) No failure or delay on the part of the Agent, any Bank, or
the holder of any Note in exercising any right, power or privilege under
this Agreement or the Notes shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege under this
Agreement or the Notes preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and
remedies provided in and contemplated by this Agreement and the Notes are
cumulative and not exclusive of any rights or remedies provided by law.
9.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the Borrower, the Agent and the Banks and their
respective successors and assigns, except that the Borrower may not assign its
rights and obligations hereunder without the prior written consent of the Banks.
Each Bank may at any time sell, assign, transfer, grant participations in,
or otherwise dispose of all or any portion of its Loans or Notes or of its
right, title and interest therein or thereto or in or to this Agreement
(collectively, "Participations") to any other lending office or to any other
Person ("Participants"). Without in any way limiting the rights of the
Participants hereunder, the Borrower agrees that the Participants shall in any
event be entitled to the benefits of Section 2.13, 4 or 9.5 hereof to the extent
of their respective Participations as if the Participant were a Bank. The
Borrower agrees that any Participant may exercise any and all rights of banker's
lien, set-off and counterclaim with respect to its Participation as fully as if
such Participant were the holder of a Loan in the amount of its Participation.
9.4 EXPENSES; DOCUMENTARY TAXES. The Borrower shall pay all out-of-
pocket expenses of the Agent (including fees and disbursements of special
counsel for the Banks) in connection with the preparation and administration of
this Agreement, the Notes and any waiver or amendment of any provision hereof or
thereof and, if there is an Event of Default, all out-of-pocket expenses
incurred by the Agent or any Bank (including fees and disbursements of counsel
and time charges of attorneys who may be employees of the Agent or such Bank) in
connection with such Event of Default and collection and other enforcement
proceedings resulting therefrom. The Borrower agrees to indemnify the Banks from
and hold them harmless against any documentary taxes, assessments or charges
made by any governmental authority by reason of the execution and delivery of
this Agreement or the Notes.
9.5 SHARING OF SET-OFFS. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal
<PAGE>
- 27 -
and interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note held by such other Bank, the
Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to Notes held by Banks shall be shared by the Banks pro
rata; PROVIDED that nothing in this Section 9.5 shall impair the right of any
Bank to exercise any right of set-off or counterclaim it may have and to apply
the amount subject to such exercise to the payment of indebtedness of the
Borrower other than the indebtedness evidenced by the Notes. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Bank receives a secured claim in lieu of a set-off to which this
Section would apply, such Bank shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Banks entitled under this Section to share in the benefits of any
recovery on such secured claim.
9.6 COLLATERAL. Each of the Banks represents that it in good faith is
not relying on any "margin stock" (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
9.7 COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
9.8 HEADINGS; TABLE OF CONTENTS. The section and subsection headings
used herein and the Table of Contents have been inserted for convenience of
reference only and do not constitute matters to be considered in interpreting
this Agreement.
9.9 GOVERNING LAW. This Agreement and the Notes shall be construed in
accordance with and governed by the law of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
BEMIS COMPANY, INC.
By: _____________________
Title:
<PAGE>
- 28 -
222 South 9th Street
Suite 2300
Minneapolis, Minnesota 55402-4099
Attention: Treasurer or Assistant Treasurer
Telex:
<PAGE>
- 29 -
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as Agent
By:__________________________
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention: _________________
Telex: 177615 MGT UT
<PAGE>
- 30 -
$16,666,666.67 NORWEST BANK MINNESOTA, NA.
By: ____________________________
Title: Vice President
Domestic and Euro-Dollar Lending Office:
6th and Marquette
Minneapolis, Minnesota 55479-0085
Attention: Molly S. Van Metre
Vice President
Telex 290734
<PAGE>
- 31 -
$16,666,666.67 FIRST BANK NATIONAL ASSOCIATION
By: _________________________
Title: Vice President
Domestic and Euro-Dollar
Lending Office:
First Bank Place
Minneapolis, Minnesota 55480
Telex: 290441
<PAGE>
- 32 -
COMMITMENTS
- -----------
$33,333,333.33 MORGAN GUARANTY TRUST COMPANY
By: _________________________
Vice President
Domestic Lending Office:
60 Wall Street
Attention: Loan Department
New York, New York 10260-0060
Telex: 177615 MGT UT
<PAGE>
- 33 -
$16,666,666.67 BANQUE NATIONALE DE PARIS
By: _______________________
Title: Executive Vice President
and General Manager
DOMESTIC LENDING OFFICE:
200 North LaSalle Street, Suite 2400
Chicago, Illinois 60601
Attention: Kevin McFadden
(312) 977-2200
Fax: (312) 977-1380
Telex: 253187
EURO-DOLLAR LENDING OFFICE:
BNP GEORGETOWN
c/o BANQUE NATIONALE DE PARIS
200 N. LaSalle Street, Suite 2400
Chicago, Illinois 60601
(312) 977-2200
fax: (312) 977-1380
<PAGE>
- 34 -
$16,666,666.66 ROYAL BANK OF CANADA
By: _____________________
Title: Manager
DOMESTIC LENDING OFFICE:
Royal Bank of Canada
ABN #026004093, Credit Acct. #9902693
Attn: Loans Administration regarding Bemis
EURO-DOLLAR LENDING OFFICE:
Same as above.
<PAGE>
- 35 -
EXHIBIT A
NOTE
U.S. $________ ____________, 1991
New York, New York
FOR VALUE RECEIVED, BEMIS COMPANY, INC. a Missouri corporation (the
"Borrower"), hereby unconditionally promises to pay to the order of
__________________ (the "Bank") for the account of (i) in the case of Domestic
Loans, its Domestic Lending office and (ii) in the case of Euro-Dollar Loans,
its Euro-Dollar Lending office, the unpaid principal amount of each Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred to below on
the last day of the Interest Period relating to such Loan. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful money
of the United States of America in Federal or other immediately available funds
at the office of the Bank located at 60 Wall Street, New York, New York 10260-
0060.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed by
the Bank on the schedule attached hereto and made a part hereof, PROVIDED that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
originally dated as of August 1, 1986 and amended and restated as of August 1,
1991, among the Borrower, the Banks listed on the signature pages thereof and
Morgan Guaranty Trust Company of New York, as Agent (as the same may be amended
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
BEMIS COMPANY, INC.
By: ___________________________
Name:
Title:
<PAGE>
AMENDMENT NO. 1
TO AMENDED AND RESTATED CREDIT AGREEMENT
Amendment, dated as of May 1, 1992 to the Amended and Restated Credit
Agreement originally dated as of August 1, 1986, Amended and Restated as of
August 1, 1991 (the "Agreement") among Bemis Company, Inc. (the "Borrower"), the
Banks listed there in (the "Banks") and Morgan Guaranty Trust Company of New
York, as Agent (the "Agent").
The parties hereto desire to amend the Agreement subject to the terms
and conditions of this Amendment, as hereinafter provided. Accordingly, the
parties hereto agree as follows:
1. DEFINITIONS. Except as otherwise defined herein, capitalized
terms used herein have the respective meanings assigned to them in the
Agreement.
2. AMENDMENTS. Section 2.14 of the Agreement is amended to read in
its entirety as follows:
"2.14 EXTENSION OF COMMITMENT. On or before August 1, 1992, and
on or before each August 1 in each year thereafter, the Borrower
may, by written request to the Agent, to be delivered to each
Bank, request that the Commitment be extended for one year,
provided, however, that no request by the Borrower to extend the
Commitment will be considered if the Commitment was not extended
for the previous year. If all Banks have agreed to extend within
45 days of receipt by the Agent of such request for extension,
the commitment will be extended for an additional period of one
year from the then current Termination Date, and the term
'Termination Date' shall thereafter refer to the date that the
Commitment, as so extended, shall terminate. If the Commitment
is not extended as provided in this Section 2.14, this Agreement
will automatically terminate on the then current Termination Date
without further action by the Borrower, the Agent or the Banks."
3. REPRESENTATIONS. The Borrower hereby confirms and repeats each
of the representations and warranties set forth in the Agreement on and as of
the date of this Amendment as if made on and as of such date and as if each
reference therein to the Agreement referred to the Agreement as modified hereby,
and represents and warrants that no Event of Default or other event which, with
the giving of notice or the lapse of time, or both, would constitute such an
Event of Default has occurred and is continuing.
4. AGREEMENT AS AMENDED. except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the terms
thereof.
<PAGE>
- 2 -
5. GOVERNING LAW. This Amendment, and the Agreement as amended
hereby, shall be construed in accordance with and governed by the laws of the
State of New York.
6. SEVERABILITY. In case any one or more of the provisions contained
in this Amendment should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
7. COUNTERPARTS; EFFECTIVE DATE. This Amendment may be executed in
any number of counterparts, each of which shall constitute an original but all
of which when taken together shall constitute one and the same instrument. This
Amendment shall become effective as of the date first above written upon receipt
by the Agent of counterparts hereof executed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the day and year first above
written.
BEMIS COMPANY, INC.
By: ____________________________________
Title: Vice President and Treasurer
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By: ___________________
Title:
NORWEST BANK MINNESOTA, N.A.
By: _______________________
Title:
<PAGE>
- 3 -
FIRST BANK NATIONAL ASSOCIATION
By: ________________________
Title: Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:________________________
Title: Vice President
BANQUE NATIONALE DE PARIS
By: _________________________
Title:
ROYAL BANK OF CANADA
By: _________________________
Title:
<PAGE>
AMENDMENT NO. 2
TO AMENDED AND RESTATED CREDIT AGREEMENT
Second Amendment, dated as of December l, 1992, to the Amended and
Restated Credit Agreement originally dated as of August 1, 1986, Amended and
Restated as of August 1, 1991, as amended by Amendment No. 1 to the Amended and
Restated Credit Agreement dated as of May 1, 1992 (the "Agreement"), among Bemis
Company, Inc., the Banks listed therein, and Morgan Guaranty Trust Company of
New York, as Agent.
The parties hereto desire to amend the Agreement subject to the terms and
conditions of this Amendment, as hereinafter provided. Accordingly, the parties
hereto agree as follows:
1. DEFINITION. Except as otherwise defined herein, capitalized terms
used herein have the respective meanings assigned to them in the Agreement.
2. AMENDMENT TO SECTION 2. Section 2.3(A) is hereby deleted in its
entirety and the following is inserted in lieu thereof:
(A) With respect to each Loan made pursuant to Section 2.1 hereof, the
Borrower shall give the Agent notice (a "Notice of Borrowing") on the same date
of each Base Rate Loan, at least one Domestic Business Day before borrowing a CD
Loan, or at least three Euro-Dollar Business Days before borrowing a Euro-Dollar
Loan, specifying:
(i) the date of such Loan, which shall be a Domestic Business Day
in the case of a Domestic Loan and a Euro-Dollar Business Day in the case
of a Euro-Dollar Loan;
(ii) the principal amount of such Loan;
(iii) whether the Loan is to be a Base Rate Loan, a CD Loan or a
Euro-Dollar Loan; and
(iv) in the case of a Fixed Rate Loan, the duration of the Interest
Period applicable thereto, subject to the definition of Interest Period.
3. REPRESENTATIONS. The Borrower hereby confirms and repeats the
representations and warranties contained in Section 5 of the Agreement, and for
such purpose references therein to the Agreement shall be deemed to be
references to the Agreement as amended hereby.
4. THE AGREEMENT AS AMENDED. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the terms
thereof, and any reference at any time hereafter to the Agreement shall be
deemed to be a reference to the Agreement as amended hereby.
<PAGE>
- 2 -
5. GOVERNING LAW. This Amendment shall be construed in accordance
with and governed by the laws of the State of New York.
6. SEVERABILITY. In case any one or more of the provisions contained
in this Amendment should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
7. COUNTERPARTS; EFFECTIVE DATE. This Amendment may be executed in
any number of counterparts, each of which shall constitute an original but all
of which when taken together shall constitute one and the same instrument. This
Amendment shall become effective upon receipt by the Agent of counterparts
hereof executed by the Required Banks.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the day and year first above
written:
BEMIS COMPANY, INC.
By: _______________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, AS AGENT
By: ________________________
Name:
Title:
NORWEST BANK MINNESOTA, N.A.
By: ________________________
Name:
Title:
<PAGE>
- 3 -
FIRST BANK NATIONAL ASSOCIATION
By: _______________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: _______________________
Name:
Title:
BANQUE NATIONAL DE PARIS
By: ______________________
Name:
Title:
ROYAL BANK OF CANADA
By: ________________________
Name:
Title:
<PAGE>
AMENDMENT NO. 3
TO AMENDED AND RESTATED CREDIT AGREEMENT
Amendment No. 3, dated as of January 22, 1993, to the Amended and Restated
Credit Agreement originally dated as of August 1, 1986, Amended and Restated as
of August l, 1991, as amended by Amendment No. l to the Amended and Restated
Credit Agreement, dated as of May 1, 1992, and by the Second Amendment to the
Amended and Restated Credit Agreement, dated as of December 1, 1992 (as so
amended, the "Agreement"), among Bemis Company, Inc. (the "Borrower"), the
Banks listed therein (the "Banks") and Morgan Guaranty Trust Company of
New York, as Agent (the "Agent").
The parties hereto desire to amend the Agreement, subject to the terms and
conditions of this Amendment No. 3, as hereinafter provided. Accordingly, the
parties hereto agree as follows:
l. DEFINITIONS. Except as otherwise defined therein, capitalized
terms used herein have the respective meanings assigned to them in the
Agreement.
2. AMENDED COMMITMENTS; ADDITION OF BANK.
(a) The Agreement is hereby amended to amend the Commitment of
each Bank to the amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from time to time
pursuant to Section 2.8 of the Agreement.
(b) Effective the date hereof, J.P. Morgan Delaware, a
signatory hereto, shall become a "Bank" under the Agreement, with all the
rights and obligations of a "Bank" as set forth in the Agreement. The
Commitment of J.P. Morgan Delaware shall be the amount set forth opposite
its name on the signature pages hereof, as such amount may be reduced from
time to time pursuant to Section 2.8 of the Agreement.
3. Each Bank (other than J.P. Morgan Delaware) hereby agrees to
deliver to the Borrower its Note marked "Canceled". The Borrower hereby agrees
to execute and deliver to each Bank a note, substantially in the form of Exhibit
A hereto (the "Amended Note"), reflecting such Bank's Commitment as adjusted
hereby. All references to "Note" in the Agreement shall be deemed to be
references to the Amended Note.
4. REPRESENTATIONS. The Borrower hereby confirms and repeats each of
the representations and warranties set forth in the Agreement on and as of the
date of this Amendment No. 3 as if made on and as of such date and as if each
reference therein to the Agreement referred to the Agreement as modified hereby.
The Borrower represents and warrants that no Event of Default or other event
which, with the giving of notice or the lapse of time, or both, would constitute
such an Event of Default, has occurred and is continuing.
<PAGE>
- 2 -
5. CONDITIONS PRECEDENT. This Amendment No. 3 shall become effective
as of the date upon which the following conditions precedent shall be satisfied:
(a) The Agent shall have received counterparts hereof duly
executed by each Bank and the Borrower.
(b) The Agent shall have received for the account of each Bank
an Amended Note duly executed by the Borrower.
(c) The Agent shall have received an opinion of counsel to the
Borrower in form and substance satisfactory to the Agent.
(d) The Agent shall have received certified copies of all
corporate action taken by the Borrower to authorize the execution,
delivery and performance of this Amendment No. 3 and each Amended Note.
6. AGREEMENT AS AMENDED. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the terms
thereof.
7. GOVERNING LAW. This Amendment No. 3, and the Agreement as amended
hereby, shall be governed by and construed in accordance with the law of the
State of New York.
8. SEVERABILITY. In case any one or more of the provisions contained
in this Amendment No. 3 should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
9. COUNTERPARTS. This Amendment No. 3 may be executed in any number
of counterparts, each of which shall constitute an original but all of which
when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to
be executed by their duly authorized officers as of the day and year first
'above written.
BEMIS COMPANY, INC.
By: _______________________
Title:
<PAGE>
- 3 -
COMMITMENTS
- -----------
$23,333,333.34 NORWEST BANK MINNESOTA, N.A.
By: _______________________________
Title:
$23,333,333.34 FIRST BANK NATIONAL ASSOCIATION
By:________________________
Title:
$16,666,666.67 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: _______________________
Title:
$23,333,333.34 BANQUE NATIONAL DE PARIS
By: _______________________
Title:
<PAGE>
- 4 -
$23,333,333.34 ROYAL BANK OF CANADA
By: ___________________________
Title:
$30.000.000.00 J.P. MORGAN DELAWARE
- --------------
By: _______________________
Title:
$140,000,000.00 TOTAL
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By: _________________________
Title:
60 Wall Street
New York, New York 10260-0060
Attention: Michele D. Sledge
Telex: 177615 MGT UT
or 620106 HGT UW
Telecopy: (212)648-5022
<PAGE>
AMENDMENT #4
AMENDMENT NO. 4
TO AMENDED AND RESTATED CREDIT AGREEMENT
Amendment No. 4, dated as of March 15, 1994, to the Amended and Restated
Credit Agreement originally dated as of August 1, 1986, Amended and Restated as
of August 1, 1991, as amended by Amendment No. 1 to the Amended and Restated
Credit Agreement, dated as of May 1, 1992, by the Second Amendment to the
Amended and Restated Credit Agreement, dated as of December 1, 1992, and by
Amendment No. 3 to Amended and Restated Credit Agreement, dated as of January
22, 1993 (as so amended and restated, the "Agreement") among Bemis Company, Inc.
(the "Borrower"), the Banks listed therein (the "Banks") and Morgan Guaranty
Trust Company of New York, as Agent (the "Agent").
The parties hereto desire to amend the Agreement, subject to the terms and
conditions of this Amendment No. 4, as hereinafter provided. Accordingly, the
parties hereto agree as follows:
1. DEFINITIONS. Except as otherwise defined herein, capitalized terms
used herein have the respective meanings assigned to them in the Agreement.
2. AMENDED COMMITMENTS. The Agreement is hereby amended to amend the
Commitment of each Bank to the amount set forth opposite the name of such Bank
on the signature pages hereof, as such amount may be reduced from time to time
pursuant to Section 2.8 of the Agreement.
3. NOTES. Each Bank hereby agrees to deliver to the Borrower its Note
marked "Canceled". The Borrower hereby agrees to execute and deliver to the
Agent for the account of each Bank a note, substantially in the form of Exhibit
A hereto (the "Amended Note"), reflecting such Bank's Commitment as amended
hereby. All references to "Note" in the Agreement shall be deemed to be
references to the Amended Note.
4. REPRESENTATIONS. The Borrower hereby confirms and repeats each of
the representations and warranties set forth in the Agreement on and as of the
date of this Amendment No. 4 as if made on and of such date and as if each
reference therein to the Agreement referred to the Agreement as amended hereby.
The Borrower represents and warrants that no Event of Default or other event
which, with the giving of notice or the lapse of time, or both, would constitute
such an Event of Default, has occurred and is continuing.
5. CONDITIONS PRECEDENT. This Amendment No. 4 shall become effective
as of the date upon which the following conditions precedent shall be satisfied:
(a) The Agent shall have received counterparts hereof duly
executed by each Bank and the Borrower;
<PAGE>
- 2 -
(b) The Agent shall have received for the account of each Bank
an Amended Note, duly executed by the Borrower;
(c) The Agent shall have received an opinion of Scott W.
Johnson, Esq., General Counsel of the Borrower, substantially in form of
Exhibit B hereto; and
(d) The Agent shall have received copies of all corporate action
taken by the Borrower to authorize the execution, delivery and performance
of this Amendment No. 4 and each Amended Note and the performance of the
Agreement.
6. AGREEMENT AS AMENDED. Except as amended hereby, the Agreement
shall continue in full force and effect in accordance with the terms thereof.
7. GOVERNING LAW. This Amendment No. 4, and the Agreement as amended
hereby, shall be governed by and construed in accordance with the law of the
State of New York.
8. SEVERABILITY. In case any one or more of the provisions contained
in this Amendment No. 4 should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
9. COUNTERPARTS. This Amendment No. 4 may be executed in any number
of counterparts, each of which shall constitute an original but all of which
when taken together shall constitute one and the same instrument.
<PAGE>
- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to
be executed by their duly authorized officers as of the day and year first above
written.
BEMIS COMPANY, INC.
By: _______________________
Title:
COMMITMENTS
- -----------
$26,666,666.67 NORWEST BANK MINNESOTA, N.A.
By: _______________________
Title:
$26,666,666.67 FIRST BANK NATIONAL ASSOCIATION
By: __________________________
Title:
$19,333,333.32 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: __________________________
Title:
$34,000,000.00 J.P. MORGAN DELAWARE
By: ____________________________
Title:
<PAGE>
- 4 -
$26,666,666.67 BANQUE NATIONAL DE PARIS
By: __________________________
Title:
$26,666,666.67 ROYAL BANK OF CANADA
By: __________________________
Title:
TOTAL COMMITMENTS
- -----------------
$160,000,000.00 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By: ________________________
Title:
<PAGE>
EXHIBIT A
NOTE
U.S. $ ________________________ New York, New York
March __, 1994
FOR VALUE RECEIVED, BEMIS COMPANY, INC., a Missouri corporation
(the "Borrower"), promises to pay to the order of
_______________________________________ (the "Bank") for the account of (i) in
the case of Domestic Loans, its Domestic Lending Office and (ii) in the case of
Euro-Dollar Loans, its Euro-Dollar Lending Office, the unpaid principal amount
of each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the last day of the Interest Period relating to such Loan.
The Borrower promises to pay interest on the unpaid principal amount of each
such Loan on the dates and at the rate or rates provided for in said Credit
Agreement.
All such payments of principal and interest shall be made in lawful
money of the United States, in Federal or other immediately available funds, at
the office of Morgan Guaranty Trust Company of New York, 60 Wall Street, New
York, New York.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; PROVIDED that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
originally dated as of August 1, 1986, Amended and Restated as of August 1,
1991, as amended by Amendment No. l to Amended and Restated Credit Agreement,
dated as of May 1, 1992, by the Second Amendment to the Amended and Restated
Credit Agreement, dated as of December 1, 1992, by Amendment No. 3 to Amended
and Restated Credit Agreement, dated as of January 22, 1993 and by Amendment No.
4 to Amended and Restated Credit Agreement, dated as of March 15, 1994 among the
Borrower, the Banks listed on the signature pages thereof and Morgan Guaranty
Trust Company of New York, as Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
<PAGE>
- 2 -
BEMIS COMPANY, INC.
By: _______________________
Title:
<PAGE>
- 3 -
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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AMOUNT OF
AMOUNT OF TYPE OF PRINCIPAL MATURITY NOTATION
DATE LOAN LOAN REPAID DATE MADE BY
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<PAGE>
EXHIBIT B
[BEMIS COMPANY, INC. LETTERHEAD]
March __, 1994
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
I am General Counsel of Bemis Company, Inc. (the "Borrower") and, as
such, have acted for the Borrower in connection with the (i) Amended and
Restated Credit Agreement dated as of August 1, 1991 (as amended, the "Amended
and Restated Credit Agreement"), as amended by Amendment No. 1 to Amended and
Restated Credit Agreement, dated as of May 1, 1992, by the Second Amendment to
the Amended and Restated Credit Agreement, dated as of December 1, 1992, by
Amendment No. 3 to Amended and Restated Credit Agreement, dated as of January
22, 1993, and by Amendment No. 4 to Amended and Restated Credit Agreement (the
"Amendment"), dated as of March 15, 1994 among Bemis Company, Inc. (the
"Borrower"), the Banks listed therein (the "Banks") and Morgan Guaranty Trust
Company of New York, as Agent (the "Agent"), and (ii) Amended Notes from the
Borrower to the Banks. Terms defined in the Credit Agreement are used herein as
therein defined.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
<PAGE>
- 2 -
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Missouri, and has all corporate powers
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the
Amendment and each Amended Note and the performance by the Borrower of the
Amended and Restated Credit Agreement are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action and will not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Borrower, or
of any agreement, judgment, order, decree or instrument binding upon the
Borrower or result in the creation of any Lien upon any of its property or
assets.
3. The Amendment constitutes a valid and binding agreement of the
Borrower, the Amended and Restated Credit Agreement constitutes a valid and
binding agreement of the Borrower and each Amended Note constitutes a valid and
binding obligation of the Borrower.
Very truly yours,
BEMIS COMPANY, INC.
Scott W. Johnson
Senior Vice President,
General Counsel & Secretary
<PAGE>
[EXECUTION COPY]
AMENDMENT NO. 5
TO AMENDED AND RESTATED CREDIT AGREEMENT
Amendment No. 5, dated June 1, 1994, to the Amended and Restated Credit
Agreement originally dated as of August 1, 1986, Amended and Restated as of
August 1, 1991, as amended by Amendment No. 1 to the Amended and Restated Credit
Agreement, dated as of May 1, 1992, by the Second Amendment to the Amended and
Restated Credit Agreement, dated as of December 1, 1992, by Amendment No. 3 to
Amended and Restated Credit Agreement, dated as of January 22, 1993, and by
Amendment No. 4 to Amended and Restated Credit Agreement, dated as of March 15,
1994 (as so amended and restated, the "Agreement") among Bemis Company, Inc.
(the "Borrower"), the Banks listed therein (the "Banks") and Morgan Guaranty
Trust Company of New York, as Agent (the "Agent").
The parties hereto desire to amend the Agreement, subject to the terms and
conditions of this Amendment No. 5, as hereinafter provided. Accordingly, the
parties hereto agree as follows:
1. DEFINITIONS. Except as otherwise defined herein, capitalized terms
used herein have the respective meanings assigned to them in the Agreement.
2. DEFINITION OF "TERMINATION DATE".
(a) The definition of the term "Termination Date" contained in
Section 1.1 of the Agreement is hereby amended by deleting the reference
therein to "August 1, 1998" and inserting in lieu thereof a reference to
"August 1, 1999".
(b) The following defined terms shall be inserted in Section 1.1
of the Agreement in alphabetical order:
"Relevant Debt" means any unsecured long-term Debt of the
Borrower that does not have the benefit of credit enhancement from
any third Person and includes $8,000,000 City of Crossett, Arkansas
Industrial Development Revenue Bonds, Bemis Company, Inc., Project
1989.
"S&P" means Standard & Poor's Corporation, and
its successors.
3. AMENDMENT OF SECTION 2.6 OF THE AGREEMENT.
(a) The third paragraph contained under Section 2.6(B) of the
Agreement is hereby amended by deleting it in its entirety and inserting
the following in lieu thereof:
<PAGE>
"The 'CD Margin' means a rate per annum equal to .30 of 1%
if the Borrower's Relevant Debt is rated at least AA- by S&P or
.375 of 1% if the Borrower's Relevant Debt is rated at least A-
by S&P's but is not rated at least AA- by S&P's or .50 of 1% if
the Borrower's Relevant Debt is rated BBB+ (or lower) by S&P or
is not rated by S&P's."
(b) The fifth paragraph contained under Section 2.6(c) of the
Agreement is hereby amended by deleting it in its entirety and inserting
the following in lieu thereof:
"The 'Euro-Dollar Margin' means a rate per annum equal to
.175 of 1% per annum if the Borrower's Relevant Debt is rated at
least AA- by S&P or .25 of 1% if the Borrower's Relevant Debt is
rated at least A- by S&P's but is not rated at least AA- by S&P's
or .375 of 1% if the Borrower's Relevant Debt is rated BBB+ (or
lower) by S&P or is not rated by S&P's."
4. AMENDMENT OF SECTION 2.7 OF THE AGREEMENT. The first sentence of
Section 2.7 of the Agreement is hereby amended by deleting the same in its
entirety and inserting the following in lieu thereof:
"The Borrower shall pay to the Agent for the account of each Bank
a facility fee computed at a rate per annum equal to .10 of 1% if the
Borrower's Relevant Debt is rated at least AA- by S&P or .125 of 1% if
the Borrower's Relevant Debt is rated at least A- by S&P and is not
rated at least AA- by S&P or .175 of 1% if the Borrower's Relevant
Debt is rated at least BBB by S&P and is not rated at least A- by S&P
or .25 of 1% if the Borrower's Relevant Debt is rated BBB- or lower by
S&P's or is not rated by S&P's in each case on the total amount of
such Bank's Commitment, regardless of the usage, PROVIDED that the
provisions of this Section 2.7 (as in effect prior to the effective
date of Amendment No. 5, dated June 1, 1994, hereto) shall apply to
but excluding such effective date."
5. ASSIGNMENT. J.P. Morgan Delaware hereby assigns and sells to
Morgan Guaranty Trust Company of New York all of the rights of J.P. Morgan
Delaware under the Agreement as amended hereby, and Morgan Guaranty Trust
Company of New York hereby accepts such assignment from J.P. Morgan Delaware and
assumes all the obligations of J.P. Morgan Delaware under the Agreement as
amended hereby. On the effective date of this Amendment No. 5 and upon payment
of the amount (if any) to be paid on such date by Morgan Guaranty Trust Company
of New York to J.P. Morgan Delaware (i) Morgan Guaranty Trust Company of New
York shall succeed to the rights of J.P. Morgan Delaware under the Agreement as
amended hereby and shall assume the obligations of J.P. Morgan Delaware under
the Agreement as amended hereby and shall have a Commitment in an aggregate
amount equal to $53,333,333.32
<PAGE>
and (ii) the Commitment of J.P. Morgan Delaware under this Agreement as amended
hereby shall be reduced to 0 and J.P. Morgan Delaware shall be released from its
obligations under the Agreement as amended hereby. The assignment provided for
in this Section 5 shall be without recourse to J.P. Morgan Delaware.
6. REPRESENTATIONS. The Borrower hereby confirms and repeats each of
the representations and warranties set forth in the Agreement on and as of the
date of this Amendment No. 5 as if made on and of such date and as if each
reference therein to the Agreement referred to the Agreement as amended hereby.
The Borrower represents and warrants that no Event of Default or other event
which, with the giving of notice or the lapse of time, or both, would constitute
such an Event of Default, has occurred and is continuing.
7. CONDITIONS PRECEDENT. This Amendment No. 5 shall become effective
as of the date hereof; PROVIDED that the following conditions precedent shall
then be satisfied:
(a) The Agent shall have received counterparts hereof duly
executed by each Bank and the Borrower;
(b) The Agent shall have received an opinion of Scott W.
Johnson, Esq., General Counsel of the Borrower, substantially in form of
Exhibit A hereto;
(c) Morgan Guaranty Trust Company of New York shall have
received for its account a copy of a new Note, substantially in the form
of Exhibit B hereto (the "Amended Note"), reflecting its Commitment as
amended hereby, and each of Morgan Guaranty Trust Company of New York and
J.P. Morgan Delaware shall have delivered to the Borrower its existing
Note marked "Canceled"; and
(d) The Agent shall have received copies of all corporate action
taken by the Borrower to authorize the execution, delivery and
performance of this Amendment No. 5 and the performance of the Agreement
as amended hereby.
8. AGREEMENT AS AMENDED. Except as amended hereby, the Agreement
shall continue in full force and effect in accordance with the terms thereof.
9. GOVERNING LAW. This Amendment No. 5, and the Agreement as amended
hereby, shall be governed by and construed in accordance with the law of the
State of New York.
10. SEVERABILITY. In case any one or more of the provisions contained
in this Amendment No. 5 should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
<PAGE>
- 4 -
11. COUNTERPARTS. This Amendment No. 5 may be executed in any number
of counterparts, each of which shall constitute an original but all of which
when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5
to be executed by their duly authorized officers as of the day and year first
above written.
BEMIS COMPANY, INC.
By: ___________________________
Title:
<PAGE>
- 5 -
NORWEST BANK MINNESOTA, N.A.
By: _______________________
Title:
<PAGE>
- 6 -
FIRST BANK NATIONAL ASSOCIATION
By: _________________________
Title:
<PAGE>
- 7 -
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: ___________________________
Title:
<PAGE>
- 8 -
J.P. MORGAN DELAWARE
By: ___________________________
Title:
<PAGE>
- 9 -
BANQUE NATIONALE DE PARIS
By: ____________________________
Title:
<PAGE>
- 10 -
ROYAL BANK OF CANADA
By: ____________________________
Title:
<PAGE>
- 11 -
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By: ____________________________
Title:
<PAGE>
AMENDMENT NO. 6
TO CREDIT AGREEMENT
Amendment No. 6, dated as of February 1, 1995 to the Amended and Restated
Credit Agreement originally dated as of August 1, 1986, Amended and Restated as
of August 1, 1991 (as the same may be amended from time to time, the
"Agreement"), among Bemis Company, Inc. (the "Borrower"), the Banks listed
therein (the "Banks") and Morgan Guaranty Trust Company of New York, as Agent
(the "Agent").
The parties hereto desire to amend the Agreement to increase the amount
of the aggregate Commitment and the individual Commitments of the Banks subject
to the terms and conditions of this Amendment No. 6, as hereinafter provided.
Accordingly, the parties hereto agree as follows:
1. DEFINITIONS. Except as otherwise defined herein, capitalized terms
used herein have the respective meanings assigned to them in the Agreement.
2. AMENDED COMMITMENT OF FACILITY.
(a) The amount of the Commitment set forth on the cover page of the
Agreement is hereby increased from "$160,000,000" to "$200,000,000".
(b) The Commitment of each Bank is hereby amended to the amount set
forth opposite the name of such Bank on the signature pages hereof, as
such amount may be reduced from time to time pursuant to Section 2.8 of
the Agreement.
3. NOTE. Each Bank hereby agrees to deliver to the Borrower its Note
marked "Cancelled". The Borrower hereby agrees to execute and deliver to each
Bank a note, substantially in the form of Exhibit A hereto (the "Amended Note"),
reflecting such Bank's Commitment as adjusted hereby. All references to "Note"
in the Agreement shall be deemed to be references to the Amended Note.
4. REPRESENTATIONS. The Borrower hereby confirms and repeats each of
the representations and warranties set forth in the Agreement on and as of the
date of this Amendment No. 6 as if made on and as of such date and as if each
reference therein to the Agreement referred to the Agreement as modified hereby,
and represents and warrants that no Event of Default or other event which, with
the giving of notice or the lapse of time, or both, would constitute such an
Event of Default has occurred and is continuing.
5. CONDITIONS PRECEDENT. This Amendment No. 6 shall become effective
as of the date upon which the following conditions precedent shall be satisfied:
(a) The Agent shall have received counterparts hereof duly
executed by each Bank and the Borrower.
<PAGE>
- 2 -
(b) The Agent shall have received for the account of each Bank
an Amended Note duly executed by the Borrower.
(c) The Agent shall have received an opinion of counsel to the
Borrower in form and substance satisfactory to the Agent.
(d) The Agent shall have received certified copies of all
corporate action taken by the Borrower to authorize the execution,
delivery and performance of this Amendment No. 6 and each Amended Note.
6. AGREEMENT AS AMENDED. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the terms
thereof.
7. GOVERNING LAW. This Amendment No. 6, and the Agreement as amended
hereby, shall be construed in accordance with and governed by the laws of the
State of New York.
8. SEVERABILITY. In case any one or more of the provisions contained
in this Amendment No. 6 would be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
9. COUNTERPARTS. This amendment No. 6 may be executed in any number
of counterparts, each of which shall constitute an original but all of which
when taken together shall constitute one and the same instrument.
<PAGE>
- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6
to be executed by their duly authorized officers as of the day and year first
above written.
BEMIS COMPANY, INC.
By: ___________________________
Title
Commitments
- -----------
$33,333,333.33 NORWEST BANK MINNESOTA, N.A.
By: ___________________________
Title:
$33,333,333.33 FIRST BANK NATIONAL ASSOCIATION
By: ____________________________
Title:
$66,666,666.68 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: ____________________________
Title:
$33,333,333.33 BANQUE NATIONALE DE PARIS
By: _________________________
Title:
<PAGE>
- 4 -
$33,333,333.33 ROYAL BANK OF CANADA
By: ___________________________
Title:
$200,000,000.00 TOTAL
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Agent
By: ____________________________
Title:
60 Wall Street
New York, New York 10260-0060
Attention:
Telex: 177615 MGT UT
or 620106 MGT UW
Telecopy: (212) 648-5022
<PAGE>
EXHIBIT A
NOTE
U.S.$__________________ February 1, 1995
New York, New York
FOR VALUE RECEIVED, BEMIS COMPANY, INC. a Missouri corporation (the
"Borrower"), hereby unconditionally promises to pay to the order of
________________ (the "Bank") for the account of (i) in the case of Domestic
Loans, its Domestic Lending office and (ii) in the case of Euro-Dollar Loans,
its Euro-Dollar Lending office, the unpaid principal amount of each Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred to below on
the last day of the Interest Period relating to such Loan. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful money
of the United States of America in Federal or other immediately available funds
at the office of the Bank located at 60 Wall Street, New York, New York
10260-0060.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed by
the Bank on the schedule attached hereto and made a part hereof; PROVIDED that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
originally dated as of August 1, 1986 and amended and restated as of August 1,
1991, among the Borrower, the Banks listed on the signature pages thereof and
Morgan Guaranty Trust Company of New York, as Agent (as the same may be amended
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
BEMIS COMPANY, INC.
By: ________________________________
Name:
Title:
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
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AMOUNT OF
AMOUNT OF PRINCIPAL NOTATION
DATE OF LOAN LOAN TYPE OF LOAN REPAID MATURITY DATE MADE BY
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
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</TABLE>
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-8 (Registration
Nos. 33-80666, 33-50560 and 2-61796) of Bemis Company, Inc. of our report
dated January 23, 1995, appearing on page 24 of the Annual Report to
Shareholders which is incorporated in this Annual Report on Form 10-K/A. We
also consent to the incorporation by reference of our report on the Financial
Statement Schedules which appears on page 12 of the Annual Report on Form 10-K
for the year ended December 31, 1994.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Minneapolis, Minnesota
June 27, 1995
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
14th day of June, 1995.
/s/ Winslow H. Buxton
- ----------------------------------------
Winslow H. Buxton, Director
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
13th day of June, 1995.
/s/ John H. Roe
- ----------------------------------------------
John H. Roe, Director
President and Chief Executive Officer
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
13th day of June, 1995.
/s/ Howard J. Curler
- -------------------------------------------
Howard J. Curler, Director
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
13th day of June, 1995.
/s/ Jeffrey H. Curler
- ----------------------------------------
Jeffrey H. Curler, Director
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
15th day of June, 1995.
/s/ Loring W. Knoblauch
- ---------------------------------------------
Loring W. Knoblauch, Director
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
14th day of June, 1995.
/s/ Edwin S. McBride
- --------------------------------------
Edwin S. McBride, Director
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
14th day of June, 1995.
/s/ Robert F. Mlnarik
- ---------------------------------------------
Robert F. Mlnarik, Director
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
14th day of June, 1995.
/s/ Winston R. Wallin
- --------------------------------------------
Winston R. Wallin, Director
<PAGE>
BEMIS COMPANY, INC.
POWER OF ATTORNEY OF DIRECTOR AND OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of
Bemis Company, Inc., a Missouri corporation, does hereby make, constitute and
appoint JOHN H. ROE, BENJAMIN R. FIELD AND SCOTT W. JOHNSON, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and file with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, any and all amendments to the
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Bemis
Company, Inc., and exhibits thereto, with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary or
desirable, as fully and effectually in all respects as the undersigned could do
if personally present.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand this
14th day of June, 1995.
/s/ C. Angus Wurtele
- ----------------------------------------------
C. Angus Wurtele, Director
