As filed with the Securities and Exchange Commission on January 2, 1996
Registration No. 33-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
FORT HOWARD CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 2676 39-1090992
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE> --------------------
1919 South Broadway
Green Bay, Wisconsin 54304
(414) 435-8821
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------
FORT HOWARD CORPORATION
PROFIT SHARING RETIREMENT PLAN
(Full title of the Plans)
--------------------
JAMES W. NELLEN II
Vice President and Secretary
Fort Howard Corporation
1919 South Broadway
Green Bay, Wisconsin 54304
(414) 435-8821
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
==============================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Number of Shares Offering Price Per Aggregate Registration
Securities to be Registered to be Registered(1) Share(2) Offering Price(2) Fee
- -------------------------------------------------------------------------------------------------
Common Stock par value $.01
per Share.................. 350,000 $22.50 $7,875,000 $2,715.52
Plan Interests............... (3) (3) (3) (3)
=================================================================================================
(1) Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement covers, in addition to the number of shares
of Common Stock stated above, such additional shares of Common Stock to be offered or issued
to prevent dilution as a result of future stock dividends or stock splits.
(2) Pursuant to Rule 457(h) under the Securities Act, the proposed maximum offering price per
share is based on $22.50 estimated solely for the purpose of calculating the amount of
registration fee, and is based on the average of the high and low prices of the Common Stock
as reported by Nasdaq on December 27, 1995, a date within five business days prior to the
date of filing of this Registration Statement.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein. These securities have no
offering price and therefore, pursuant to Rule 457(h)(2) no separate registration fee is
required.
</TABLE>
<PAGE> PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- -----------------------
*The information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act and the "Note" to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated by reference in this Registration
Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1995, June 30, 1995 and September 30, 1995.
3. The description of the Company's Common Stock in the Company's
Registration Statement on Form 8-A, filed with the Commission on March 8,
1995, including any amendment or report filed for the purpose of updating
such description.
4. Fort Howard Corporation Profit Sharing Retirement Plan Annual Report on
Form 11-K for the fiscal year ended December 31, 1994.
All documents and other reports subsequently filed by the Company or the
Fort Howard Corporation Profit Sharing Retirement Plan (the "Plan") pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder have been sold
or which deregisters all securities then remaining unsold hereunder, shall be
deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
- 2 -
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Section 145 of the Delaware
General Corporation Law provides, in summary, that directors and officers of
Delaware corporations are entitled, under certain circumstances, to be
indemnified against all expenses and liabilities (including attorney's fees)
incurred by them as a result of suits brought against them in their capacity
as a director or officer, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, if they
had no reasonable cause to believe their conduct was unlawful; provided that
no indemnification may be made against expenses in respect of any claim, issue
or matter as to which they shall have been adjudged to be liable to the
Corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
they are fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper. Any such indemnification may be made by the
Corporation only as authorized in each specific case upon a determination by
the shareholders or disinterested directors that indemnification is proper
because the indemnitee has met the applicable standard of conduct. The
Certificate of Incorporation and By-laws of the Company provide for
indemnification of its directors and officers to the fullest extent permitted
by Delaware law, as the same may be amended from time to time.
In addition, the Company maintains directors' and officers' liability
insurance.
The Company has entered into indemnification agreements ("Agreement")
with certain of its directors and officers (the "Indemnitee"). Each Agreement
provides that the Company will hold harmless and indemnify the Indemnitee
against all liabilities and will advance all expenses (as defined) incurred by
reason of the fact that the Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company, or is or was serving at the
request of the Company or for its benefit as a director, officer, employee or
agent of another enterprise, but only if the Indemnitee acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, in the case of a criminal proceeding, had
no reasonable cause to believe that his or her conduct was unlawful.
The right of indemnification and to receive advancement of expenses
pursuant to each Agreement is not exclusive of any other rights to which the
Indemnitee may at any time be entitled to under applicable law, the Company's
Certificate of Incorporation or By-Laws, any agreement, a vote of
shareholders, a resolution of the Company's Board of Directors or otherwise.
Each Agreement further provides that, to the extent that the Company maintains
a policy or policies providing directors' and officers' liability insurance,
the Indemnitee shall be covered by such policy or policies in accordance with
its or their terms to the maximum extent of the coverage available. The
Company is not liable to pay any amounts otherwise indemnifiable under an
Agreement to the extent that the Indemnitee has actually received payment
under any insurance policy, contract, agreement or otherwise; and, except as
provided in the Agreement, an Indemnitee is not entitled to indemnification or
advancement of expenses with respect to any proceeding or claim brought or
made by such Indemnitee against the Company.
- 3 -
Each Agreement terminates upon the later to occur of: (i) ten years after
the date that the Indemnitee ceases to serve as a director, officer, employee,
agent or fiduciary of the Company or of any other enterprise which the
Indemnitee served at the request or for the benefit of the Company and (ii)
the final termination of all pending proceedings in which the Indemnitee is
granted rights of indemnification under such Agreement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
4.1 Profit Sharing Retirement Plan, (As Amended and
Restated as of January 1, 1985) conformed through
the Ninth Amendment.
4.2 Plan Amendment No. 10 dated September 21, 1995.
4.3 Plan Amendment No. 11 dated December 22, 1995.
4.4 Fort Howard Profit Sharing Retirement Master Trust
effective January 1, 1996.
4.5 Summary Plan Description.
23 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included as part of signature
page.
The undersigned Registrant has submitted the Plan and
any amendment thereto to the Internal Revenue Service
in a timely manner and will make all changes required
by the IRS in order to maintain qualification of the
Plan.
------------
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
- 4 -
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration
Statement is on Form S-3 or Form S-8 and the information
required to be included in the post-effective amendment by
those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
- 5 -
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of
such issue.
- 6 -
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Green Bay, State of Wisconsin on the
29th day of December, 1995.
FORT HOWARD CORPORATION
By /s/Donald H. DeMeuse
---------------------
Donald H. DeMeuse
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
James W. Nellen II and Kathleen J. Hempel, either of whom may act without the
joinder of the other, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, for him, and in his name, place
and stead, in any and all capacities to sign any and all amendments (including
post-effective amendments) and supplements to this Registration Statement, and
to file the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
full to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or their
substitute or substitutes may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/Donald H. DeMeuse Director, Chairman of the Board December 29, 1995
- ---------------------- of Directors and Chief Executive
Donald H. DeMeuse Officer (principal executive officer)
/s/Kathleen J. Hempel Director, Vice Chairman December 29, 1995
- ---------------------- and Chief Financial Officer
Kathleen J. Hempel (principal financial officer)
/s/Michael T. Riordan Director, President and Chief December 29, 1995
- ---------------------- Operating Officer
Michael T. Riordan
/s/Donald Patrick Brennan Director December 29, 1995
- ----------------------
Donald Patrick Brennan
- 7 -
/s/Frank V. Sica Director December 7, 1995
- ----------------------
Frank V. Sica
/s/Robert H. Niehaus Director December 29, 1995
- ----------------------
Robert H. Niehaus
/s/David I. Margolis Director December 29, 1995
- ----------------------
David I. Margolis
/s/Dudley J. Godfrey, Jr. Director December 29, 1995
- ----------------------
Dudley J. Godfrey, Jr.
/s/James L. Burke Director December 6, 1995
- ----------------------
James L. Burke
/s/Charles L. Szews Vice President and Controller December 29, 1995
- ---------------------- (principal accounting officer)
Charles L. Szews
- 8 -
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the Plan) have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Green Bay, State of Wisconsin, on the 29th day of
December, 1995.
FORT HOWARD CORPORATION PROFIT
SHARING RETIREMENT PLAN
Investment Advisory Board
/s/ James W. Nellen II
------------------------------
By: James W. Nellen II
Member
- 9 -
INDEX TO EXHIBITS
Exhibit No. Description
4.1 Profit Sharing Retirement Plan, (As Amended and
Restated as of January 1, 1985) conformed through
the Ninth Amendment.
4.2 Plan Amendment No. 10 dated September 21, 1995.
4.3 Plan Amendment No. 11 dated December 22, 1995.
4.4 Fort Howard Profit Sharing Retirement Master Trust
effective January 1, 1996.
4.5 Summary Plan Description.
23 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included as part of signature
page.
The undersigned Registrant has submitted the Plan and
any amendment thereto to the Internal Revenue Service
in a timely manner and will make all changes required
by the IRS in order to maintain qualification of the
Plan.
------------
Exhibit 4.1
-----------
FORT HOWARD CORPORATION
PROFIT SHARING RETIREMENT PLAN
------------------------------
(As Amended and Restated Effective as of the EFFECTIVE DATE)
(Conformed Copy Through the Ninth Amendment)
TABLE OF CONTENTS
-----------------
ARTICLE PAGE
- ------- ----
1 DEFINITIONS 1
2 INTRODUCTION 8
2.01 PURPOSE 9
2.02 RESTATEMENT DATES 9
2.03 PLAN ADMINISTRATION 9
2.04 TRUSTEE, TRUST 9
2.05 SERVICE OF NOTICES 9
3 ELIGIBILITY AND PARTICIPATION 10
3.01 ELIGIBILITY 10
3.02 NOTICE OF PARTICIPATION 10
3.03 TERMINATION OF EMPLOYMENT 10
3.04 DISABILITY 10
3.05 LAYOFF 11
3.06 MILITARY LEAVE 11
3.07 LEAVE OF ABSENCE 11
3.08 FINALITY OF DETERMINATIONS 11
3.09 LEASED EMPLOYEES 11
4 DEFERRED WAGE CONTRIBUTIONS 12
4.01 AMOUNT OF DEFERRED WAGE CONTRIBUTIONS 12
4.02 ADJUSTMENT OF DEFERRED WAGE CONTRIBUTIONS 12
4.03 VESTING OF DEFERRED WAGE CONTRIBUTIONS 14
4.04 PAYROLL DEDUCTIONS 15
4.05 CHANGE IN DEFERRED WAGE CONTRIBUTION RATE 15
4.06 ALLOCATION OF EARNINGS TO DISTRIBUTIONS OF EXCESS
DEFERRALS, EXCESS DEFERRED WAGE CONTRIBUTIONS AND
EXCESS AGGREGATE CONTRIBUTIONS 15
4.07 MULTIPLE USE OF ALTERNATIVE LIMITATION 16
5 ROLLOVER CONTRIBUTIONS 16
5.01 ROLLOVER CONTRIBUTIONS 16
5.02 ROLLOVER CONTRIBUTORS 16
6 COMPANY CONTRIBUTIONS 17
6.01 AMOUNT OF COMPANY CONTRIBUTIONS 17
6.02 PAYMENTS TO TRUST 17
6.03 VERIFICATION OF COMPANY CONTRIBUTIONS 17
6.04 ADJUSTMENT OF COMPANY CONTRIBUTIONS 17
6.05 ACTUAL CONTRIBUTION PERCENTAGE TEST 17
7 ACCOUNTING 18
7.01 ACCOUNTS UNDER THE PLAN 18
7.02 ACCOUNTING PROCEDURES 19
7.03 ALLOCATION OF COMPANY CONTRIBUTIONS AND FORFEITURES 19
7.04 LIMITATIONS ON ADDITIONS TO PARTICIPANTS' ACCOUNTS 20
7.05 INVESTMENT OF CONTRIBUTIONS 20
7.06 INVESTMENT MANAGER 21
(i)
8 VESTING OF ACCOUNTS 21
8.01 VESTING VALUATION 21
8.02 VESTING UPON RETIREMENT OR DEATH 21
8.03 VESTING UPON RESIGNATION/DISMISSAL 22
8.04 REEMPLOYMENT AFTER INCURRING A BREAK IN
SERVICE/RECREDITING OF YEARS OF SERVICE 22
8.05 PARTICIPANTS INCURRING BREAK IN SERVICE PRIOR
TO JANUARY 1, 1985 22
8.06 REEMPLOYMENT AFTER RESIGNATION/DISMISSAL AND
INCURRING A BREAK IN SERVICE 22
8.07 CONDITIONS FOR REPAYMENT OF PRIOR DISTRIBUTION
UPON REEMPLOYMENT 23
8.08 DETERMINATION OF ACCOUNT OF REEMPLOYED
PARTICIPANT WHO HAS NOT INCURRED A BREAK
IN SERVICE 24
8.09 VESTING OF A PARTICIPANT UPON TRANSFER OF
EMPLOYMENT 24
[8.10] STATEMENT OF ACCOUNT 25
9 DISTRIBUTION OF ACCOUNTS 25
9.01 MANNER OF DISTRIBUTION AND FURTHER ADJUSTMENTS 25
9.02 INSERVICE WITHDRAWALS 27
[9.03] REPAYMENTS OF INSERVICE WITHDRAWALS 30
[9.04] DESIGNATION OF BENEFICIARY 31
9.05 MISSING PARTICIPANTS OR BENEFICIARIES 31
9.06 DISTRIBUTION IN COMPANY SECURITIES 32
9.07 ALTERNATE PAYEE DUE TO INCAPACITY 32
9.08 COMMENCEMENT OF DISTRIBUTIONS 32
9.09 DIRECT TRANSFER OF ELIGIBLE ROLLOVER
DISTRIBUTIONS 32
10 MISCELLANEOUS 33
10.01 INFORMATION TO BE FURNISHED BY PARTICIPANTS 33
10.02 INTERESTS NOT TRANSFERABLE 34
10.03 ABSENCE OF GUARANTY 34
10.04 EMPLOYMENT RIGHTS 34
10.05 GENDER AND NUMBER 34
10.06 REVIEW OF BENEFIT DETERMINATIONS 34
10.07 ERISA 35
10.08 UNIFORM ADMINISTRATION 35
10.09 AMENDMENT OR DISCONTINUANCE 36
10.10 PLAN MERGER OR CONSOLIDATION 36
10.11 TRUST AGREEMENT 36
10.12 WISCONSIN LAW TO GOVERN 36
10.13 STOCK RIGHTS OF PARTICIPANTS 37
10.14 NO INTEREST IN COMPANY 38
11 TOP HEAVY RESTRICTIONS 38
11.01 DEFINITIONS 38
11.02 TOP HEAVY DEFINED 39
11.03 VESTING PROCEDURES 40
11.04 MINIMUM BENEFITS FOR NON-KEY EMPLOYEES 41
11.05 MAXIMUM ANNUAL COMPENSATION 42
11.06 FORMULA FOR DETERMINING COMPANY CONTRIBUTIONS 42
11.07 SECTION 416 OF THE CODE AND ITS REGULATIONS 42
11.08 NO DUPLICATION OF BENEFITS 43
(ii)
12 INVESTMENT ADVISORY BOARD 43
12.01 MEMBERSHIP 43
12.02 GENERAL POWERS, RIGHTS AND DUTIES 43
12.03 MANNER OF ACTION 44
12.04 INTERESTED MEMBER 44
12.05 RESIGNATION OR REMOVAL OF MEMBERS 45
12.06 EXPENSES 45
12.07 INFORMATION REQUIRED 45
12.08 UNIFORM RULES 45
12.09 REVIEW OF BENEFIT DETERMINATIONS 46
12.10 FINAL DECISION 46
EXHIBIT A -- FORMULA FOR DETERMINING COMPANY CONTRIBUTIONS UNDER
FORT HOWARD CORPORATION PROFIT SHARING RETIREMENT PLAN A-1
(iii)
FORT HOWARD CORPORATION
PROFIT SHARING RETIREMENT PLAN
------------------------------
January 1, 1985 Restatement
WHEREAS, the Fort Howard Corporation Profit Sharing Retirement Plan
was amended and restated effective January 1, 1984, for the benefit of
eligible employees of Fort Howard Corporation; and
WHEREAS, it is deemed desirable to amend and restate said Plan in
its entirety;
NOW, THEREFORE, effective as of January 1, 1985 but with respect
only to employees who retire, die or otherwise terminate their employment on
or after said date, said Profit Sharing Retirement Plan hereby is amended and
restated in its entirety in the respects hereinafter set forth. The rights
and obligations of employees who have retired, died or otherwise terminated
their employment prior to January 1, 1985, shall be governed by the terms of
the Plan as in effect on the date of their retirement, death or termination of
employment except as otherwise provided herein.
Article
DEFINITIONS
-----------
The following terms, when used and capitalized herein, are defined as follows
and limited to that meaning only:
1.01 "ACCOUNTING DATE" means any ANNUAL ACCOUNTING DATE or MONTHLY
ACCOUNTING DATE.
1.02 "ACCOUNT" means a COMPANY CONTRIBUTION ACCOUNT, PRIOR PARTICIPANT
ACCOUNT, if any, DEFERRED WAGE ACCOUNT, if any, and any other
account which the TRUSTEE maintains in the name of each PARTICIPANT.
1.03 "ANNUAL ACCOUNTING DATE" means any December 31.
1.04 "ANNUAL BASE PAY" means the total compensation paid to a PARTICIPANT
for services rendered to the COMPANY during a calendar year,
including overtime, holiday pay, sick days, salary continuation, and
vacation pay, but excluding goodwill and discretionary bonuses,
short term disability benefits, suggestion awards, sales awards,
sales incentive compensation, amounts deducted from compensation and
contributed by the PARTICIPANT to any nonqualified supplemental
Retirement Plan and all other special or unusual compensation of
any kind. The amount of ANNUAL BASE PAY shall be determined prior
to any reduction for DEFERRED WAGE CONTRIBUTIONS. In addition,
ANNUAL BASE PAY means, for a PARTICIPANT who was in the employ of a
RELATED CORPORATION, the total compensation paid by such RELATED
CORPORATION as if it were determined under the definition set forth
- 1 -
above. For PLAN YEARS beginning on and after January 1, 1994, a
PARTICIPANT'S ANNUAL BASE PAY shall not exceed the $150,000
limitation described in Section 401(a)(17) of the CODE, as that
limitation is adjusted from time to time by the Secretary of
Treasury to reflect cost of living increases. In determining the
ANNUAL BASE PAY of a PARTICIPANT, the rules of Section 414(q)(6)
shall apply, except that in applying such rules, the term "family"
shall include only the spouse of the PARTICIPANT and any lineal
descendants of the PARTICIPANT who have not attained age 19 before
the close of the year.
1.05 "BENEFICIARY" means the person(s) or entity(ies) to whom a deceased
PARTICIPANT's benefits are payable, provided, however, in the case
of a deceased PARTICIPANT who was married at the time of his death,
BENEFICIARY shall mean the spouse of such deceased PARTICIPANT
unless such spouse consented in writing to another person(s) or to
other entity(ies) as BENEFICIARY. Such a consent will be effective
only if it acknowledges the specific BENEFICIARY and the effect of
the BENEFICIARY DESIGNATION, is witnessed by a PLAN representative
or a notary public, and may not be changed without further spousal
consent (unless the consent expressly permits subsequent BENEFICIARY
designations without spousal consent).
1.06 "BREAK IN SERVICE" means an interruption in or cessation of
employment with the COMPANY by an EMPLOYEE during any calendar year
in which such EMPLOYEE has completed not more than Five Hundred
(500) HOURS OF SERVICE. In determining whether or not a BREAK IN
SERVICE has occurred or the number of one-year BREAKS IN SERVICE, an
EMPLOYEE who has established that he was absent due to an UNPAID
LEAVE FOR MATERNITY OR CHILD REARING shall not be deemed to have
incurred a BREAK IN SERVICE in the first PLAN YEAR in which he would
have otherwise incurred a BREAK IN SERVICE if he would have been
credited with at least Five Hundred (500) HOURS OF SERVICE under
Section 1.23(iii)(Hours of Service) had he been an EMPLOYEE for such
period.
1.07 "CODE" means the Internal Revenue Code of 1986, as amended.
[1.09] "COMPANY" means Fort Howard Corporation, and whenever the context so
permits, any subsidiary, affiliate corporation or division of
Fort Howard Corporation which is participating in the Plan pursuant
to a resolution of Fort Howard Corporation's Board of Directors and,
when appropriate, of the Board of Directors of such subsidiary or
affiliate corporation.
1.10 "COMPANY CONTRIBUTION" means any contribution made by the COMPANY to
the TRUST (other than DEFERRED WAGE CONTRIBUTIONS) on behalf of each
PARTICIPANT in an amount determined according to the FORMULA.
COMPANY CONTRIBUTIONS shall also include additional amounts, if any,
contributed by the COMPANY to the TRUST out of its current or
accumulated earnings as the Board of Directors of the COMPANY may
determine by resolution adopted before the ANNUAL ACCOUNTING DATE.
- 2 -
Such COMPANY CONTRIBUTIONS may, in the discretion of the COMPANY, be
made in cash or in COMPANY securities valued at their fair market
value on the ACCOUNTING DATE coincident with or immediately
preceding the date upon which such COMPANY CONTRIBUTIONS are payable
to the TRUST.
1.11 "COMPANY CONTRIBUTION ACCOUNT" means the account maintained for each
PARTICIPANT by the TRUSTEE to reflect the PARTICIPANT'S share of
COMPANY CONTRIBUTIONS and FORFEITURES, and the INVESTMENT EARNINGS
attributable to such items.
1.12 "DEFERRED WAGE ACCOUNT" means the account maintained for each
PARTICIPANT by the TRUSTEE to reflect the DEFERRED WAGE
CONTRIBUTIONS made on behalf of such PARTICIPANT, and the INVESTMENT
EARNINGS attributable to such contributions.
1.13 "DEFERRED WAGE CONTRIBUTION" means the amount which a PARTICIPANT
may elect to have the COMPANY contribute to the TRUST after
January 1, 1984, on his behalf from such PARTICIPANT'S ANNUAL BASE
PAY for the purposes set forth in the PLAN. It is intended that
DEFERRED WAGE CONTRIBUTIONS shall constitute "employer
contributions" for purposes of Section 401(k) of the CODE.
1.14 "DISABILITY" means a disability incurred by an EMPLOYEE which
results in an authorized absence by such EMPLOYEE from work.
1.15 "DISTRIBUTION ACCOUNT" means the account established by the TRUSTEE
for the purpose of maintaining and subsequently distributing the
ACCOUNTS of a PARTICIPANT, including the INVESTMENT EARNINGS
attributable to such ACCOUNTS, upon the termination for any reason
of such PARTICIPANT'S employment with the COMPANY.
1.16 "DISTRIBUTION DATE" means the date upon which ACCOUNT balances are
distributed to a PARTICIPANT, or in the event of the death of such
PARTICIPANT, to the BENEFICIARY of such PARTICIPANT.
1.17 "EFFECTIVE DATE" means January 1, 1985.
1.18 "EMPLOYEE" means any employee of the COMPANY who is eligible to
become a PARTICIPANT under the Plan; provided, however, any person
who is a member of a collective bargaining unit on whose behalf
retirement benefits were the subject of good faith bargaining, shall
not be an EMPLOYEE.
1.19 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
- 3 -
1.20 "ESOP" means the Fort Howard Corporation Employee Stock Ownership
Plan and Trust.
1.21 "FORFEITURE" means that portion of a PARTICIPANT'S COMPANY
CONTRIBUTION ACCOUNT which is not distributable to such PARTICIPANT
upon RESIGNATION/DISMISSAL in accordance with Section 8.03 (Vesting
Upon Resignation/Dismissal).
1.22 "FORMULA" means the formula set forth in Exhibit A, attached hereto
and incorporated herein by this reference, according to which
COMPANY CONTRIBUTIONS are calculated.
1.23 "HOURS OF SERVICE" as of January 1, 1978, and thereafter, means (a)
each hour for which an EMPLOYEE is directly or indirectly paid or
entitled to payment by the COMPANY for the performance of duties;
(b) each hour for which an EMPLOYEE is directly or indirectly paid
or entitled to payment by the COMPANY although no duties are
performed; and (c) each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the COMPANY
with respect to such EMPLOYEE; provided however, that:
(i) an EMPLOYEE who is not paid by the hour shall be credited with
Ten (10) HOURS OF SERVICE for each day for which he would, if
hourly-paid, be credited with an HOUR OF SERVICE pursuant to
the foregoing;
(ii) an EMPLOYEE who is paid by the hour shall be credited with the
number of regularly scheduled working hours (or Eight (8)
HOURS OF SERVICE per day to a maximum Forty (40) HOURS OF
SERVICE per week if he has no regular work schedule) included
in a period of time during which no duties are performed and
for which he is paid or entitled to payment, by the COMPANY;
and
(iii) subject to Sections 3.04, 3.05, 3.06 and 3.07, an EMPLOYEE
shall also be credited with the number of regularly scheduled
working hours to a maximum of Eight (8) HOURS OF SERVICE for
each day (to a maximum Forty (40) HOURS OF SERVICE per week)
that he is absent because of DISABILITY, LAYOFF, LEAVE OF
ABSENCE, or MILITARY LEAVE, and is not otherwise credited with
HOURS OF SERVICE.
1.24 "INCREMENT" means an amount (either positive or negative) determined
as of a current ACCOUNTING DATE by subtracting (1) the fair market
value as of the ACCOUNTING DATE immediately preceding the current
ACCOUNTING DATE of an investment fund within the TRUST FUND
excluding any COMPANY CONTRIBUTIONS, DEFERRED WAGE CONTRIBUTIONS,
PRIOR PARTICIPANT CONTRIBUTIONS or ROLLOVER CONTRIBUTIONS which have
not yet been allocated to the PARTICIPANTS' ACCOUNTS as of such
date; from (2) the fair market value as of the current ACCOUNTING
DATE of the same investment fund within the TRUST FUND excluding any
COMPANY CONTRIBUTIONS, DEFERRED WAGE CONTRIBUTIONS, PRIOR
PARTICIPANT CONTRIBUTIONS or ROLLOVER CONTRIBUTIONS which have not
yet been allocated as of such current ACCOUNTING DATE.
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1.25 "INVESTMENT ADVISORY BOARD" means an investment advisory board
appointed by the Chief Executive Officer of the COMPANY consisting
of such number of persons as determined by the Chief Executive
Officer of the COMPANY, which shall function as the PLAN
ADMINISTRATOR.
1.26 INVESTMENT EARNINGS" means the income, losses, appreciation and
depreciation attributable to ACCOUNTS.
1.27 "INVESTMENT EARNINGS PERCENTAGE" means, as of an ACCOUNTING DATE,
determined separately for each investment fund within the TRUST
FUND, the percentage obtained by dividing (1) the INCREMENT
determined as of such ACCOUNTING DATE by (2) the fair market value
of such investment fund excluding any COMPANY CONTRIBUTIONS,
DEFERRED WAGE CONTRIBUTIONS, PRIOR PARTICIPANT CONTRIBUTIONS and
ROLLOVER CONTRIBUTIONS which were not allocated to the
PARTICIPANTS' ACCOUNTS as of the ACCOUNTING DATE immediately
preceding the ACCOUNTING DATE used to determine the INCREMENT in
the numerator.
1.28 "LAYOFF" means an authorized period during which an EMPLOYEE is laid
off from his job with the COMPANY for a period not exceeding Two (2)
Years on account of a reduction in work force.
1.28A "LEASED EMPLOYEE" means any person who is not an EMPLOYEE of the
COMPANY, but who has provided services to the COMPANY of a type
which have historically (within the business field of the COMPANY)
been provided by EMPLOYEES, on a substantially full-time basis for a
period of at least one year, pursuant to an agreement between the
COMPANY and a leasing organization.
1.29 "LEAVE OF ABSENCE" mans a period of absence from employment granted
by the COMPANY under conditions which are not treated by the COMPANY
as a termination of employment.
1.30 "MILITARY LEAVE" means an authorized leave required by law or
granted by the COMPANY to an EMPLOYEE for the purpose of entering
any one or more of the United States Army, United States Navy,
United States Air Force, United States Coast Guard, United States
Marine Corps, United States Public Health Service or any
governmental service designated by the COMPANY.
1.31 "MONTHLY ACCOUNTING DATE" means the last day of each month which is
not an ANNUAL ACCOUNTING DATE.
1.32 "PARTICIPANT" means each EMPLOYEE who is presently participating in
the PLAN and each former employee and BENEFICIARY for whom an
ACCOUNT is maintained.
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[1.33] "PLAN" means the Fort Howard Corporation Profit Sharing Retirement
Plan.
1.34 "PLAN ADMINISTRATOR" means the "administrator" of the PLAN, for
purposes of Section 3(16)(A) of ERISA.
1.35 "PLAN YEAR" means a calendar year beginning January 1 and ending
December 31.
1.36 "PRIOR PARTICIPANT CONTRIBUTION" means any contribution made by a
PARTICIPANT to the PLAN prior to the January 1, 1984, other than
ROLLOVER CONTRIBUTIONS.
1.37 "PRIOR PARTICIPANT ACCOUNT" means the account maintained for each
PARTICIPANT by the TRUSTEE to reflect the PRIOR PARTICIPANT
CONTRIBUTIONS, if any, and the INVESTMENT EARNINGS attributable to
such contributions.
1.38 "QUALIFIED DOMESTIC RELATIONS ORDER" means a judgment, decree or
order (including approval of a property settlement agreement) which:
(a) relates to the provision of child support, alimony payments,
or marital property rights to a spouse (former spouse), child,
or other dependent of a PARTICIPANT (hereinafter known as
"alternate payee"); and
(b) is made pursuant to a State domestic relations law (including
a community property law); and
(c) creates or recognizes the existence of an alternate payee's
right to, or assigns to an alternate payee the right to
receive all or a portion of the benefits payable to a
PARTICIPANT under the PLAN; and
(d) clearly specifies the name and last known mailing address (if
any) of the PARTICIPANT and the name and mailing address of
each alternate payee covered by the judgment, decree or order
(including approval of a property settlement agreement); and
(e) clearly specifies the amount or percentage of the
PARTICIPANT'S benefits to be paid by the PLAN to each such
alternate payee, or the manner in which such amount or
percentage is to be determined; and
(f) clearly specifies the number of payments or period to which
such order applies; and
(g) clearly specifies that it applies to the PLAN; and
(h) does not require the PLAN to provide any type or form of
benefit, or any option, not otherwise available under the
PLAN; and
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(i) does not require the PLAN to provide increased benefits
(determined on the basis of actuarial value); and
(j) does not require the PLAN to pay benefits to an alternate
payee which are required to be paid to another alternate payee
under another QUALIFIED DOMESTIC RELATIONS ORDER.
1.39 "RELATED CORPORATION" means each corporation, other than the
COMPANY, which is a member of the controlled group of corporations
of which the COMPANY is a member as determined under Section 1563(a)
of the CODE, without regard to Section 1563(a)(4) and Section
1563(e)(3)(C) of the CODE.
1.40 "RESIGNATION/DISMISSAL" means resignation or dismissal from
employment with the COMPANY other than by reason of RETIREMENT or
death.
1.41 "RETIREMENT" means termination of employment with the COMPANY by
reason of (a) attainment of age 55 or older; or (b) a determination
by the COMPANY of a disability retirement.
1.42 "ROLLOVER CONTRIBUTION" means a transfer (including a direct
transfer or direct rollover) to the PLAN within Sixty (60) days
after receipt by the EMPLOYEE of (a) an eligible rollover
distribution described in Section 402(c)(4) of the CODE, or (b) a
rollover contribution described in Section 408(d)(3) of the CODE,
and any investment earnings on such sums.
1.43 "SERVICE UNIT" means a unit which is credited to a PARTICIPANT for
the purpose of determining the portion of COMPANY CONTRIBUTIONS
allocable to such PARTICIPANT'S COMPANY CONTRIBUTION ACCOUNT each
year under Section 7.03 (Allocation of Company Contributions and
Forfeitures). For the purpose of the above-mentioned Section 7.03,
each PARTICIPANT who was in the employ of the COMPANY on
December 31, 1975 shall be credited with the number of SERVICE UNITS
to which he is entitled under the terms of the PLAN as in effect on
December 31, 1975, plus one additional unit for such calendar year
in which he has a YEAR OF SERVICE after such date. Each PARTICIPANT
hired on or after January 1, 1976, shall be entitled to one SERVICE
UNIT for each calendar year in which he has a YEAR OF SERVICE after
January 1, 1976.
1.44 "TRUST" means the Fort Howard Profit Sharing Retirement Master
Trust.
1.45 "TRUST FUND" means the trust fund consisting of all property of any
kind held by the TRUSTEE under the PLAN as of any date.
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1.46 "TRUSTEE" means the trustee of the PLAN which shall manage, hold,
invest and distribute funds contributed under the PLAN pursuant to
the terms of the TRUST.
1.47 "UNPAID LEAVE FOR MATERNITY OR CHILD REARING" means a period of time
following a termination of employment in the event that such
termination of employment was due to one or more of the following
reasons:
(a) pregnancy of the EMPLOYEE
(b) birth of a child of the EMPLOYEE
(c) placement of a child in the home of the EMPLOYEE in connection
with the adoption of such child or
(d) for the purpose of caring for a child for a period beginning
immediately following the birth or placement of such child.
An UNPAID LEAVE FOR MATERNITY OR CHILD REARING must be evidenced by
information reasonably required by the INVESTMENT ADVISORY BOARD to
establish that the reason for the absence was for one of the reasons
stated above.
1.48 "VESTING VALUATION DATE" means the date upon which a PARTICIPANT'S
employment with the COMPANY terminates for any reason, which shall
be the date of the first to occur of the following:
(a) RESIGNATION/DISMISSAL;
(b) RETIREMENT;
(c) death.
The VESTING VALUATION DATE shall be the date upon which YEARS OF
SERVICE are determined for purposes of vesting and distribution of
such PARTICIPANT'S ACCOUNTS.
1.49 "YEAR OF SERVICE" means with respect to an EMPLOYEE each full year
of employment with the COMPANY prior to December 31, 1975 where such
EMPLOYEE received credit under the terms of the PLAN as in effect on
December 31, 1975. Effective January 1, 1976, a YEAR OF SERVICE
means with respect to an EMPLOYEE each calendar year during which
such EMPLOYEE completes One Thousand (1,000) HOURS OF SERVICE. In
addition, a YEAR OF SERVICE shall be credited with respect to an
EMPLOYEE, for each PLAN YEAR during which he completed One Thousand
(1,000) hours of service with a RELATED CORPORATION or the COMPANY.
For purposes of the preceding sentence, "hours of service" shall be
credited as if they were HOURS OF SERVICE performed for the COMPANY.
Article 2
INTRODUCTION
------------
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2.01 PURPOSE
The PLAN is maintained by the COMPANY to enable its EMPLOYEES to
share in the COMPANY'S profits and to provide a means whereby
EMPLOYEES can defer the receipt of otherwise current compensation
and accumulate funds without current taxation to provide for their
future security. The PLAN is intended to be a qualified profit
sharing plan under Section 401(a) and a qualified cash or deferred
arrangement under Section 401(k) of the CODE.
2.02 RESTATEMENT DATES
The PLAN was established as of January 1, 1951. The PLAN was
amended and restated to comply with ERISA, effective January 1,
1976. The PLAN has since been amended from time to time either by
restatement or amendment and is hereby further amended and restated,
effective as of the January 1, 1985.
2.03 PLAN ADMINISTRATION
The INVESTMENT ADVISORY BOARD shall be responsible for carrying out
those duties and responsibilities imposed upon (a) the PLAN
ADMINISTRATOR by ERISA; and (b) the INVESTMENT ADVISORY BOARD by the
PLAN and the TRUST. The INVESTMENT ADVISORY BOARD shall have the
discretionary authority to determine all questions arising under the
PLAN, including the power to determine the rights or eligibility of
EMPLOYEES or PARTICIPANTS and any other persons, and the amounts of
their benefits under the PLAN, and to remedy ambiguities,
inconsistencies or omissions. The INVESTMENT ADVISORY BOARD from
time to time may adopt such rules and regulations as may be
necessary or desirable for the proper and efficient administration
of the PLAN and as are consistent with the terms of the PLAN. The
COMPANY may, in writing signed by its Chief Executive Officer,
delegate specific powers or duties relating to the operation of the
PLAN to such persons as such Chief Executive Officer may deem
appropriate, except any powers or duties which are reserved to the
Board of Directors of the COMPANY by the terms of the PLAN or the
TRUST.
2.04 TRUSTEE, TRUST
Funds contributed to the PLAN shall be managed, held, invested and
distributed by the TRUSTEE, or by an investment manager(s), in
accordance with the TRUST, which shall implement the PLAN.
2.05 SERVICE OF NOTICES
Any notice or document required to be given to or filed with the
INVESTMENT ADVISORY BOARD shall be deemed properly given or filed if
delivered or mailed by registered mail, postage prepaid, to the
INVESTMENT ADVISORY BOARD, in care of the COMPANY.
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Article 3
ELIGIBILITY AND PARTICIPATION
-----------------------------
3.01 ELIGIBILITY
Each EMPLOYEE who was a PARTICIPANT on December 31, 1984, shall
remain a PARTICIPANT. Each EMPLOYEE who was not a PARTICIPANT on
December 31, 1984, shall become a PARTICIPANT on the first to occur
of the following:
(a) any June 30 or December 31 which next follows the first
anniversary of his date of hire if he has completed One
Thousand (1,000) HOURS OF SERVICE during the Twelve (12) month
period ending on the first anniversary of his date of hire;
or
(b) any December 31 which next follows the first anniversary of
his date of hire if he completes a YEAR OF SERVICE during the
calendar year ending on such December 31.
3.02 NOTICE OF PARTICIPATION
The INVESTMENT ADVISORY BOARD shall notify each EMPLOYEE of the date
on which he shall become a PARTICIPANT, as early as practicable
prior to such date.
3.03 TERMINATION OF EMPLOYMENT
If the employment of an EMPLOYEE who is a PARTICIPANT is terminated
for any reason, such EMPLOYEE shall thereupon cease to be a
PARTICIPANT except to the extent of any ACCOUNTS to which he may be
entitled because of his prior participation in the PLAN. If such
PARTICIPANT is subsequently reemployed by the COMPANY, he shall
again enter the PLAN as of the date of his reemployment and may
begin making DEFERRED WAGE CONTRIBUTIONS in accordance with Section
4.01 (Amount of Deferred Wage Contributions).
3.04 DISABILITY
DISABILITY of an EMPLOYEE (whether or not he is a PARTICIPANT) shall
not interrupt continuity of service or participation for purposes of
the PLAN. Such EMPLOYEE shall be credited with HOURS OF SERVICE for
any period during which he is absent because of such DISABILITY.
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3.05 LAYOFF
LAYOFF of an EMPLOYEE (whether or not he is a PARTICIPANT) shall
not interrupt continuity of service or participation for purposes
of the PLAN. Such EMPLOYEE shall be credited with HOURS OF SERVICE
for such LAYOFF. If such EMPLOYEE on LAYOFF is not called back to
work by the COMPANY within two years after such LAYOFF began, he
shall cease to receive credit for HOURS OF SERVICE after such
two-year period.
3.06 MILITARY LEAVE
MILITARY LEAVE by an EMPLOYEE (whether or not he is a PARTICIPANT)
shall not interrupt continuity of service or participation for
purposes of the PLAN. Such EMPLOYEE shall be credited with HOURS OF
SERVICE for any such period of MILITARY LEAVE.
3.07 LEAVE OF ABSENCE
A LEAVE OF ABSENCE shall not interrupt continuity of service or
participation for purposes of the PLAN; provided, however, that an
EMPLOYEE (whether or not he is a PARTICIPANT) shall not receive
credit for HOURS OF SERVICE for any portion of a LEAVE OF ABSENCE
which exceeds one year.
3.08 FINALITY OF DETERMINATIONS
All determinations with respect to the crediting of YEARS OF SERVICE
under the PLAN shall be made on the basis of the records of the
COMPANY or a RELATED CORPORATION, and all determinations so made
shall be final and conclusive upon EMPLOYEES, former EMPLOYEES, and
all other persons claiming a benefit interest under the PLAN.
Notwithstanding anything to the contrary contained in the PLAN,
there shall be no duplication of YEARS OF SERVICE credited to an
EMPLOYEE, for any one period of his employment with the COMPANY or a
RELATED CORPORATION.
3.09 LEASED EMPLOYEES
A LEASED EMPLOYEE shall not be eligible to participate in the PLAN.
If a LEASED EMPLOYEE subsequently becomes an EMPLOYEE of the
COMPANY, the period during which a LEASED EMPLOYEE performs services
for the COMPANY shall be taken into account for purposes of Sections
3.01 and 8.01 of the Plan; unless (i) such LEASED EMPLOYEE is a
participant in a money purchase pension plan maintained by the
leasing organization which provides a non-integrated employer
contribution rate of at least 10 percent of compensation, immediate
participation for all employees and full and immediate vesting, and
(ii) LEASED EMPLOYEES do not constitute more than 20 percent of the
COMPANY's nonhighly compensated workforce.
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Article 4
DEFERRED WAGE CONTRIBUTIONS
---------------------------
4.01 AMOUNT OF DEFERRED WAGE CONTRIBUTIONS
Each PARTICIPANT who is an EMPLOYEE may, as of the EFFECTIVE DATE,
elect to have the COMPANY make DEFERRED WAGE CONTRIBUTIONS on his
behalf by filing a written election form with the INVESTMENT
ADVISORY BOARD by such date as the INVESTMENT ADVISORY BOARD shall
determine, specifying in such election the amount, which shall be
not less than One percent (1%) nor more than Eight percent (8%) of
his ANNUAL BASE PAY, of DEFERRED WAGE CONTRIBUTIONS which the
PARTICIPANT desires to have subtracted from his current compensation
from the COMPANY and contributed to the TRUSTEE on his behalf. Any
PARTICIPANT who is absent because of DISABILITY, is on LEAVE OF
ABSENCE, LAYOFF, or MILITARY LEAVE or whose employment terminates
and is subsequently reinstated, may make such election provided by
this Section by filing a written election form with the INVESTMENT
ADVISORY BOARD by such date as the INVESTMENT ADVISORY BOARD shall
determine. Any other EMPLOYEE may make such election by filing a
written election form with the INVESTMENT ADVISORY BOARD by such
date as the INVESTMENT ADVISORY BOARD shall determine. The maximum
amount which any PARTICIPANT shall defer in any one PLAN YEAR is
$7,000. This dollar maximum amount shall increase pursuant to the
cost of living allowance as prescribed by the Secretary of the
Treasury. In the event that a PARTICIPANT defers more than the
dollar maximum specified above ("excess deferrals"), he shall
receive the excess deferrals in cash. The INVESTMENT ADVISORY BOARD
shall direct the TRUSTEE to distribute to the PARTICIPANT, prior to
the April 15 following the end of the PLAN YEAR in which the excess
deferrals occurred, the PARTICIPANT's excess deferrals (along with
any income attributable thereto as determined under Section 4.06, if
any).
4.02 ADJUSTMENT OF DEFERRED WAGE CONTRIBUTIONS
(a) For any PLAN YEAR the actual deferral percentage for the
highly compensated employees as defined in paragraph (b) shall
not exceed the greater of (i) or (ii) as follows:
(i) The actual deferral percentage for the eligible
employees who are not highly compensated employees as
defined in paragraph (b) of this Section, times 1.25,
or
(ii) The actual deferral percentage for the eligible
employees who are not highly compensated employees as
defined in paragraph (b) of this Section, times 2.0;
provided, however, that the actual deferral percentage
for the highly compensated employees as defined in
paragraph (b) of this Section may not exceed the actual
deferral percentage for the eligible employees who are
not highly compensated as defined in paragraph (b) of
this Section, by more than two percentage points.
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The actual deferral percentage for a specified group of
employees for a PLAN YEAR shall be the average of the ratios
(calculated separately for each employee in such group) of:
(A) The amount of DEFERRED WAGE CONTRIBUTIONS actually paid
to the PLAN on behalf of each such employee for such
PLAN YEAR, to
(B) The employee's compensation for such PLAN YEAR. An
employee's compensation shall be the total amount of
compensation paid to said employee by the COMPANY
determined in accordance with Internal Revenue Code
Reg. Sec. 1.415(2)(d)(1) and (2) (hereafter
"COMPENSATION").
The INVESTMENT ADVISORY BOARD shall determine, from time to
time, from the elections of DEFERRED WAGE CONTRIBUTIONS then
on file with the INVESTMENT ADVISORY BOARD, whether the
foregoing limitations will be satisfied and, to the extent
necessary to ensure compliance with such limitations, may
reduce, on a pro rata basis, the applicable percentages of
ANNUAL BASE PAY to be withheld for the highly compensated
employees for the next quarter or pay period. If at the end
of any PLAN YEAR, because of the foregoing limitations, a
portion of the DEFERRED WAGE CONTRIBUTIONS withheld from a
PARTICIPANT's current compensation cannot be credited to his
DEFERRED WAGE ACCOUNT ("excess deferred wage contributions"),
such contributions shall be treated as additional earnings of
the PARTICIPANT and, if already contributed to the TRUSTEE,
shall be returned to the PARTICIPANT (along with any income
attributable thereto as determined under Section 4.06, if any)
within two and one-half months after the end of that PLAN
YEAR. If adjustments are necessary to comply with the actual
deferral percentage tests, excess deferred wage contributions
of highly compensated employees shall be reduced in the order
of their average deferral percentages, beginning with the
highest percentage.
(b) The term "highly compensated employees" shall mean all
eligible employees who are:
(i) 5% or more stockholders (or is considered as owning 5%
or more of the stock within the meaning of Section 318
of the CODE) of the COMPANY or a RELATED CORPORATION
during the PLAN YEAR; or
(ii) EMPLOYEES of the COMPANY or a RELATED CORPORATION whose
COMPENSATION is in excess of $75,000 (or such greater
amount as may be determined by the Commissioner of
Internal Revenue); or
(iii) EMPLOYEES of the COMPANY or a RELATED CORPORATION whose
COMPENSATION is in excess of $50,000 (or such greater
amount as may be determined by the Commissioner of
Internal Revenue) and is included in a group consisting
of the top 20% of the eligible employees when ranked on
the basis of COMPENSATION paid during such year; or
- 13 -
(iv) Officers of the COMPANY or RELATED CORPORATION at any
time and received COMPENSATION greater than 50% of the
amount in effect under Section 415(b)(1)(A) of the
CODE; provided, however, that no more than 50 of said
officers shall be considered in this category.
In the case of the PLAN YEAR for which the determination of
"highly compensated employees" is being determined, an
eligible employee not described in subparagraphs (ii), (iii),
and (iv) of paragraph (b) herein for the preceding PLAN YEAR
(without regard to this paragraph) shall not be treated as
described in said subparagraphs (ii), (iii), and (iv) unless
such eligible employee is a member of the group consisting of
the 100 employees paid the greatest COMPENSATION during the
PLAN YEAR that such determination is being made. The term
"highly compensated employees" shall also include any highly
compensated former employee who separated from service (or was
deemed to have separated) prior to the determination year,
performs no services for the COMPANY or a RELATED CORPORATION
during the determination year and was a highly compensated
employee for either the separation year or any determination
year ending on or after the employee's 55th birthday.
(c) For purposes of Sections 4.02(a) and 6.05, the following
family aggregation rules shall apply:
(i) Family members (i.e., the employee's spouse, lineal
descendants and ascendants, and the spouses of such
lineal descendants and ascendants) of a PARTICIPANT who
is a five percent owner or one of the 10 highly
compensated employees paid the greatest total
compensation with respect to any PLAN YEAR, shall not
be treated as separate PARTICIPANTS and a single actual
deferral percentage under Section 402(a) and a single
actual contribution percentage under Section 6.05
shall be determined for the family members and the
highly compensated employee ("family group"). The
family group shall be treated as a single highly
compensated employee having an actual deferral
percentage and an actual contribution percentage based
on the combined COMPENSATION and applicable DEFERRED
WAGE CONTRIBUTIONS or COMPANY CONTRIBUTIONS of all
members of the family group.
(ii) If a family group has excess DEFERRED WAGE
CONTRIBUTIONS or COMPANY CONTRIBUTIONS, the excess
amount resulting from the required reduction described
in (i) above shall be allocated among all members of
the family group in proportion to their respective
contributions.
4.03 VESTING OF DEFERRED WAGE CONTRIBUTIONS
Any and all amounts in the DEFERRED WAGE CONTRIBUTION ACCOUNT of a
PARTICIPANT shall be One Hundred Percent (100%) vested and
non-forfeitable at all times.
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4.04 PAYROLL DEDUCTIONS
Any DEFERRED WAGE CONTRIBUTIONS made on behalf of a PARTICIPANT
shall be deducted from his ANNUAL BASE PAY at the time of payment of
the same by the COMPANY and shall be paid to the TRUSTEE as soon as
reasonably practicable thereafter. If a PARTICIPANT'S employment
with the COMPANY is terminated for any reason, any portion of such
contributions not yet paid to the TRUSTEE shall be paid to the
TRUSTEE by the COMPANY, whereupon the TRUSTEE shall pay such portion
to such PARTICIPANT in accordance with Article 9 (Distribution of
Accounts).
4.05 CHANGE IN DEFERRED WAGE CONTRIBUTION RATE
A PARTICIPANT who is an EMPLOYEE may, by written election filed with
the INVESTMENT ADVISORY BOARD in accordance with such procedures as
it shall determine:
(a) make an initial election to have DEFERRED WAGE CONTRIBUTIONS
made on his behalf;
(b) elect to change the amount of his DEFERRED WAGE CONTRIBUTIONS
within the limits specified in Sections 4.01 (Amount of
Deferred Wage Contributions) and 4.02 (Adjustment of Deferred
Wage Contributions);
(c) elect to stop DEFERRED WAGE CONTRIBUTIONS; or
(d) having stopped DEFERRED WAGE CONTRIBUTIONS in accordance with
this Section 4.05, again elect to have such contributions made
on his behalf within the election percentage limitations
specified in the above-mentioned Section 4.01 and the general
limitations of the above-mentioned Section 4.02.
Any of the above-specified elections shall be effective as of the
first pay period for which compensation is received in the month
next following the date an election is approved by the INVESTMENT
ADVISORY BOARD.
4.06 ALLOCATION OF EARNINGS TO DISTRIBUTIONS OF EXCESS DEFERRALS, EXCESS
DEFERRED WAGE CONTRIBUTIONS AND EXCESS AGGREGATE CONTRIBUTIONS
The earnings allocable to distributions of excess deferrals, excess
deferred wage contributions and excess aggregate contributions
required under Sections 4.01, 4.02 and 6.05 shall be determined by
multiplying the earnings attributable to the PARTICIPANT's DEFERRED
WAGE CONTRIBUTIONS for the PLAN YEAR or to the COMPANY CONTRIBUTIONS
allocated under Section 7.03(a) of the PLAN, as the case may be, by
a fraction, the numerator of which is the applicable excess amount,
and the denominator of which is the balance in the PARTICIPANT's
applicable ACCOUNT or ACCOUNTS on the last day of such year reduced
by gains (or increased by losses) attributable to such ACCOUNT or
ACCOUNTS during that year. The earnings attributable to such excess
deferrals, excess deferred wage contributions and excess aggregate
contributions determined in accordance with the preceding sentence
shall be increased to reflect the earnings to the date of
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distribution by an amount equal to ten percent of the earnings
determined in accordance with the preceding sentence multiplied by
the number of calendar months that have elapsed since the end of the
applicable year. For purposes of the foregoing, a distribution
occurring on or before the fifteenth day of the month will be
treated as having been made on the last day of the preceding month,
and a distribution occurring after such fifteenth day will be
treated as having been made on the first day of the next subsequent
month.
4.07 MULTIPLE USE OF ALTERNATIVE LIMITATION
In accordance with Treasury Regulation Section 1.401(m)-2 and
Revenue Procedure 89-65, multiple use of the alternative limitation
which occurs as a result of testing under the limitations described
in Sections 4.02 and 6.05 will be corrected in the manner described
in Treasury Regulation Section 1.401(m)-1(e). The term "alternative
limitation" as used above means the alternative methods of
compliance with Sections 401(k) and 401(m) of the Internal Revenue
Code contained in Sections 401(k)(3)(A) (ii)(II) and
401(m)(2)(A)(ii) thereof, respectively.
Article 5
ROLLOVER CONTRIBUTIONS
----------------------
5.01 ROLLOVER CONTRIBUTIONS
Each PARTICIPANT, and each other EMPLOYEE who would be eligible to
participate but for his failure to satisfy the service requirement
of Section 3.01 (Eligibility), may apply in writing to the
INVESTMENT ADVISORY BOARD on the form provided for that purpose to
make a ROLLOVER CONTRIBUTION to the PLAN. Upon approval by the
INVESTMENT ADVISORY BOARD, the ROLLOVER CONTRIBUTION shall be
deposited in the TRUST FUND and credited to such PARTICIPANT'S PRIOR
PARTICIPANT ACCOUNT and maintained by the TRUSTEE as a subaccount of
such PRIOR PARTICIPANT ACCOUNT.
5.02 ROLLOVER CONTRIBUTORS
An EMPLOYEE who makes a ROLLOVER CONTRIBUTION to the PLAN as
provided in Section 5.01 above before becoming a PARTICIPANT
pursuant to the above-said Section 3.01 shall be deemed to be a
PARTICIPANT as of the date of such ROLLOVER CONTRIBUTION solely for
the purpose of maintaining such EMPLOYEE'S PRIOR PARTICIPANT
ACCOUNT. Such EMPLOYEE shall not receive an allocation of COMPANY
CONTRIBUTIONS or FORFEITURES or be entitled to elect to have
DEFERRED WAGE CONTRIBUTIONS made on his behalf or have any other
interest under this PLAN until he satisfies the requirements of the
above-said Section 3.01.
- 16 -
Article 6
COMPANY CONTRIBUTIONS
---------------------
6.01 AMOUNT OF COMPANY CONTRIBUTIONS
The COMPANY shall contribute to the TRUST on behalf of each
PARTICIPANT an amount determined according to the FORMULA, and, in
addition to the amount, if any, determined by application of the
FORMULA, the COMPANY, at its option, may contribute to the TRUST
such additional and discretionary amounts as the Board of Directors
of the COMPANY shall determine by resolution.
6.02 PAYMENTS TO TRUST
COMPANY CONTRIBUTIONS shall be paid to the TRUST without interest.
6.03 VERIFICATION OF COMPANY CONTRIBUTIONS
The certificate of a certified public accountant selected by the
COMPANY as to the correctness of any amount or calculation of
COMPANY CONTRIBUTIONS under the FORMULA or any resolution of the
COMPANY'S Board of Directors pertaining thereto shall be conclusive
on all persons.
6.04 ADJUSTMENT OF COMPANY CONTRIBUTIONS
COMPANY CONTRIBUTIONS made on behalf of any PARTICIPANT may, in the
discretion of the INVESTMENT ADVISORY BOARD, be retroactively or
prospectively adjusted to bring the PLAN into compliance with (a)
the participation and discrimination standards contained in Section
401(k) of the CODE, and (b) the "top-heavy plan" provisions of
Section 416(g) of the CODE.
6.05 ACTUAL CONTRIBUTION PERCENTAGE TEST
(a) For any PLAN YEAR the actual contribution percentage for the
highly compensated employees as defined in Section 4.02(b)
shall not exceed the greater of (i) or (ii) as follows:
(i) The actual contribution percentage for the eligible
employees who are not highly compensated employees as
defined in Section 4.02(b), times 1.25, or
(ii) The actual contribution percentage for the eligible
employees who are not highly compensated employees as
defined in Section 4.02(b), times 2.0; provided,
however, that the actual contribution percentage for
the highly compensated employees as defined in Section
4.02(b) may not exceed the actual contribution
percentage for the eligible employees who are not
- 17 -
highly compensated as defined in Section 4.02(b) by
more than two percentage points.
(b) The actual contribution percentage for a specified group of
employees for a PLAN YEAR shall be the average of the ratios
(calculated separately for each employee in such group) of:
(i) The amount of COMPANY CONTRIBUTIONS allocated to the
COMPANY CONTRIBUTION ACCOUNT of each such employee
under Section 7.03(a) of the PLAN for such PLAN YEAR,
to
(ii) The employee's compensation for such PLAN YEAR. An
employee's compensation shall be the total amount of
compensation paid to said employee by the COMPANY
determined in accordance with Internal Revenue Code
Reg. Sec. 1.415(2)(d)(1) and (2).
(c) If adjustments are necessary to comply with the actual
contribution percentage tests described above, excess COMPANY
CONTRIBUTIONS of highly compensated employees shall be reduced
in the order of their average contribution percentages,
beginning with the highest percentage. Any COMPANY
CONTRIBUTION allocated under Section 7.03(a) of the PLAN which
cannot be credited to a PARTICIPANT's COMPANY CONTRIBUTION
ACCOUNT because of the limitations described above or which is
attributable to the portion, if any, of a PARTICIPANT's excess
DEFERRED WAGE CONTRIBUTIONS determined in accordance with
Section 4.01 or 4.02 ("excess aggregate contributions") shall
not be credited to the PARTICIPANT's COMPANY CONTRIBUTION
ACCOUNT but instead shall be distributed to the PARTICIPANT,
along with the earnings applicable thereto, within two and
one-half months after the close of the PLAN YEAR for which the
amounts are in excess.
Article 7
ACCOUNTING
----------
7.01 ACCOUNTS UNDER THE PLAN
For periods beginning on or after the EFFECTIVE DATE, the TRUSTEE
shall maintain (a) a COMPANY CONTRIBUTION ACCOUNT in the name of
each PARTICIPANT, (b) a PRIOR PARTICIPANT ACCOUNT in the name of
each PARTICIPANT who made PRIOR PARTICIPANT CONTRIBUTIONS to the
PLAN prior to January 1, 1984, and each EMPLOYEE who has received
INVESTMENT ADVISORY BOARD approval to make a ROLLOVER CONTRIBUTION
to the PLAN, and (c) a DEFERRED WAGE ACCOUNT in the name of each
PARTICIPANT who elects to have DEFERRED WAGE CONTRIBUTIONS made on
his behalf.
The TRUSTEE also may maintain such other accounts in the names of
EMPLOYEES or PARTICIPANTS, or otherwise, as the TRUSTEE considers
necessary or desirable.
- 18 -
7.02 ACCOUNTING PROCEDURES
As of each MONTHLY ACCOUNTING DATE and ANNUAL ACCOUNTING DATE, the
INVESTMENT ADVISORY BOARD shall direct the TRUSTEE and/or investment
manager(s) to implement such accounting procedures with respect to
each of the ACCOUNTS under the PLAN as are necessary to administer
the PLAN in a uniform and nondiscriminatory manner consistent with
ERISA or other applicable laws. The TRUSTEE shall adjust the
ACCOUNTS of each PARTICIPANT (and the account which holds
unallocated FORFEITURES) on an ACCOUNTING DATE as follows:
(a) First, reduce a DISTRIBUTION ACCOUNT as outlined in Section
9.01 (Manner of Distribution and Further Adjustments) by an
amount equal to all payments and distributions made from such
DISTRIBUTION ACCOUNT to the extent that such DISTRIBUTION
ACCOUNT has not already been reduced to reflect such payment
and distributions or reduce a DEFERRED WAGE ACCOUNT or a PRIOR
PARTICIPANT ACCOUNT by any inservice withdrawal as outlined in
Section 9.02 (Inservice Withdrawals) to the extent that such
ACCOUNTS(S) has not been reduced to reflect such distribution;
(b) Second, increase or decrease each ACCOUNT (including the
account which holds unallocated FORFEITURES) within each
investment fund within the TRUST FUND by an amount equal to
the product of (i) the applicable INVESTMENT EARNINGS
PERCENTAGE and (ii) the balance of such ACCOUNT as of the
preceding ACCOUNTING DATE minus any distributions made since
the last ACCOUNTING DATE as described in subparagraph (a) of
this Section 7.02;
(c) Third, allocate and credit to PARTICIPANTS' COMPANY
CONTRIBUTION ACCOUNTS any COMPANY CONTRIBUTION and FORFEITURES
that are to be credited in accordance with Section 7.03
(Allocation of Company Contribution and Forfeitures) which
have been made to the TRUST FUND and not previously allocated;
and
(d) Fourth, credit to the PARTICIPANTS' DEFERRED WAGE ACCOUNTS any
DEFERRED WAGE CONTRIBUTIONS or to the PARTICIPANTS' PRIOR
PARTICIPANT ACCOUNT any ROLLOVER CONTRIBUTIONS which have not
been previously credited on the last preceding ACCOUNTING
DATE.
7.03 ALLOCATION OF COMPANY CONTRIBUTIONS AND FORFEITURES
Subject to the limitations of Section 7.04 (Limitations on Additions
to Participants' Accounts), as of each ANNUAL ACCOUNTING DATE, the
COMPANY CONTRIBUTION for the year ending on such date shall be
allocated and credited to the COMPANY CONTRIBUTION ACCOUNTS of
PARTICIPANTS employed by the Company during such year as follows:
(a) Fifty percent (50%) of the COMPANY CONTRIBUTIONS shall be
allocated to the COMPANY CONTRIBUTION ACCOUNTS of such
PARTICIPANTS, pro rata, according to the DEFERRED WAGE
CONTRIBUTIONS made on behalf of each of them during such year;
- 19 -
(b) Twenty-five percent (25%) of the COMPANY CONTRIBUTIONS shall
be allocated to the COMPANY CONTRIBUTION ACCOUNTS of such
PARTICIPANTS, pro rata, according to the ANNUAL BASE PAY of
each of them during such year; and
(c) Twenty-five percent (25%) of the COMPANY CONTRIBUTIONS shall
be allocated to the COMPANY CONTRIBUTION ACCOUNTS of such
PARTICIPANTS, pro rata, according to the number of SERVICE
UNITS allocated to each of them for such year.
However, no such allocations shall be made on behalf of PARTICIPANTS
whose VESTING VALUATION DATES occur during such year because of
RESIGNATION/DISMISSAL.
All FORFEITURES of prior PARTICIPANTS which have not been recredited
in accordance with either Section 8.06 (Reemployment After
Resignation/Dismissal and Incurring a Break in Service), or Section
8.08 (Determination of Account of Reemployed Participant Who Has Not
Incurred a Break in Service), including the INVESTMENT EARNINGS
thereon, shall be allocated and credited as of each ANNUAL
ACCOUNTING DATE to the COMPANY CONTRIBUTION ACCOUNTS of PARTICIPANTS
who were employed by the COMPANY during such year according to the
formula set forth in this Section 7.03 for the allocation of COMPANY
CONTRIBUTIONS.
7.04 LIMITATIONS ON ADDITIONS TO PARTICIPANTS' ACCOUNTS
The total amount of COMPANY CONTRIBUTIONS, FORFEITURES, and DEFERRED
WAGE CONTRIBUTIONS that may be credited in any calendar year to the
accounts of a PARTICIPANT hereunder shall not exceed the lesser of
(a) $30,000 (as adjusted for cost-of-living increases pursuant to
Section 415 of the CODE); or (b) Twenty-five percent (25%) of such
PARTICIPANT'S total compensation from the COMPANY for such year (as
stated on such PARTICIPANT'S Wage and Tax Statement [Form W-2]).
Any COMPANY CONTRIBUTIONS or FORFEITURES which cannot be credited to
a PARTICIPANT'S COMPANY CONTRIBUTION ACCOUNT because of the
limitations set forth above shall be allocated among the remaining
PARTICIPANTS in accordance with Section 7.03 (Allocation of Company
Contributions and Forfeitures).
7.05 INVESTMENT OF CONTRIBUTIONS
Contributions made to the PLAN by or on behalf of a PARTICIPANT
shall be invested in such investment fund or funds, or any of them,
and in such amounts as determined by the INVESTMENT ADVISORY BOARD
in its sole discretion. The INVESTMENT ADVISORY BOARD may also
permit the PARTICIPANT to direct the manner in which the
PARTICIPANT'S ACCOUNT balances are to be invested in part or in
whole in accordance with such uniform and nondiscriminatory rules
and procedures as the INVESTMENT ADVISORY BOARD may adopt for such
purposes.
- 20 -
7.06 INVESTMENT MANAGER
The INVESTMENT ADVISORY BOARD may appoint one or more investment
managers to have the unlimited or limited authority and power to
manage, acquire or dispose of the assets in any investment fund.
Each investment manager shall be registered as an investment adviser
under the Investment Advisers Act of 1940, a bank as defined in that
Act, or an insurance company qualified to perform such services
under the laws of more than one state, and shall acknowledge in
writing to be a fiduciary with respect to the PLAN and the TRUST.
Article 8
VESTING OF ACCOUNTS
-------------------
8.01 VESTING VALUATION
Amounts in the DEFERRED WAGE ACCOUNT and PRIOR PARTICIPANT ACCOUNT
of a PARTICIPANT are fully vested and not subject to forfeiture.
Amounts in the COMPANY CONTRIBUTION ACCOUNT of a PARTICIPANT who is
an EMPLOYEE shall vest as follows:
Years of Service Percentage Vested
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 100%
With respect to any EMPLOYEE who was a PARTICIPANT in the PLAN on or
before December 31, 1988, the vested portion of such PARTICIPANT'S
COMPANY CONTRIBUTION ACCOUNT shall not be less than the vested
portion of such ACCOUNT as determined in accordance with the vesting
schedule provided by this Section and in effect on December 31,
1988.
Distribution of amounts so vested shall be accomplished in
accordance with Article 9 (Distribution of Accounts).
The vesting percentage of a PARTICIPANT whose COMPANY CONTRIBUTION
ACCOUNT is not fully vested on the date of his termination of
employment with the COMPANY for any reason shall be determined on
the VESTING VALUATION DATE.
8.02 VESTING UPON RETIREMENT OR DEATH
If a PARTICIPANT'S employment with the COMPANY is terminated because
of RETIREMENT or death, his COMPANY CONTRIBUTION ACCOUNT shall
become nonforfeitable as of his VESTING VALUATION DATE.
- 21 -
The amount of such PARTICIPANT'S COMPANY CONTRIBUTION ACCOUNT,
DEFERRED WAGE ACCOUNT and PRIOR PARTICIPANT ACCOUNT shall be
determined as of the ACCOUNTING DATE immediately preceding his
distribution date in accordance with Section 9.01 (Manner of
Distribution and Further Adjustments).
8.03 VESTING UPON RESIGNATION/DISMISSAL
If a PARTICIPANT'S employment with the COMPANY is terminated because
of RESIGNATION/DISMISSAL, his DEFERRED WAGE ACCOUNT and PRIOR
PARTICIPANT ACCOUNT balances are fully vested and not subject to
forfeiture and his COMPANY CONTRIBUTION ACCOUNT, shall become vested
in accordance with Paragraph 8.01 herein.
The amount of such ACCOUNTS shall be determined as of the ACCOUNTING
DATE immediately preceding his DISTRIBUTION DATE in accordance with
Section 9.01 (Manner of Distribution and Further Adjustments).
8.04 REEMPLOYMENT AFTER INCURRING A BREAK IN SERVICE/RECREDITING OF YEARS
OF SERVICE
YEARS OF SERVICE in respect of a PARTICIPANT whose employment with
the COMPANY terminated after December 31, 1975, and who is
reemployed by the COMPANY after incurring a BREAK IN SERVICE, shall
not include YEARS OF SERVICE credited prior to such BREAK IN SERVICE
until such PARTICIPANT is credited with a YEAR OF SERVICE following
his reemployment. Additionally, an EMPLOYEE whose service was
terminated on or prior to December 31, 1975, and who is subsequently
reemployed by the COMPANY shall not be recredited with YEARS OF
SERVICE prior to such termination.
8.05 PARTICIPANTS INCURRING BREAK IN SERVICE PRIOR TO JANUARY 1, 1985
A former PARTICIPANT who is reemployed by the COMPANY who had
incurred a one year BREAK IN SERVICE prior to January 1, 1985, will
have permanently forfeited any FORFEITURES which arose due to a
previous RESIGNATION/DISMISSAL.
8.06 REEMPLOYMENT AFTER RESIGNATION/DISMISSAL AND INCURRING A BREAK IN
SERVICE
(a) A former PARTICIPANT who did not incur a one year BREAK IN
SERVICE and is reemployed by the COMPANY, shall have credited
to his COMPANY CONTRIBUTION ACCOUNT, an amount equal to such
PARTICIPANT'S FORFEITURE, if any, at the time of such prior
RESIGNATION/DISMISSAL. Such amount shall be subtracted from
the balance of FORFEITURES in the PLAN on the ACCOUNTING DATE
next following such PARTICIPANT'S reemployment and credited to
his COMPANY CONTRIBUTION ACCOUNT. Upon a subsequent
RESIGNATION/DISMISSAL, such PARTICIPANT shall receive the
amount which represents the vested portion of his COMPANY
CONTRIBUTION based upon the provisions of Section 8.08
(Determination of Account of Reemployed Participant Who Has
- 22 -
Not Incurred a One-Year Break In Service). Such former
PARTICIPANT shall not be required to make a repayment but may
do so if he so elects.
(b) In the event a former PARTICIPANT who has received a
distribution of his vested COMPANY CONTRIBUTION ACCOUNT or his
DEFERRED WAGE ACCOUNT due to his RESIGNATION/DISMISSAL (which
RESIGNATION/ DISMISSAL occurred on or after January 1, 1985,
or during calendar year 1984 such that there was no BREAK IN
SERVICE on January 1, 1985) is reemployed by the COMPANY
before he has incurred five (5) consecutive one-year BREAKS IN
SERVICE, his COMPANY CONTRIBUTION ACCOUNT shall be credited
with the amount he forfeited, if any, at the time of his prior
RESIGNATION/DISMISSAL if and only if he repays the amount of
the distribution he received on account of such prior
RESIGNATION/DISMISSAL as set forth in Section 8.07 (Conditions
for Repayment of Prior Distribution Upon Reemployment). In
the event such former PARTICIPANT makes a repayment of his
prior distribution or he has not received a distribution, the
amount of such PARTICIPANT'S FORFEITURE, if any, at the time
of his prior RESIGNATION/DISMISSAL shall be restored to his
COMPANY CONTRIBUTION ACCOUNT, and the PARTICIPANT'S YEARS OF
SERVICE shall include YEARS OF SERVICE completed before the
BREAKS IN SERVICE. Amounts so restored shall be subtracted
from the balance of FORFEITURES in the PLAN as of the
ACCOUNTING DATE next following the repayment.
(c) A former PARTICIPANT who terminated his employment after
January 1, 1985, who has incurred five or more consecutive
one-year BREAKS IN SERVICE and who is reemployed by the
COMPANY shall have permanently forfeited the amount, if any,
of such PARTICIPANT'S FORFEITURE which arose because of his
previous RESIGNATION/ DISMISSAL, and the PARTICIPANT'S YEARS
OF SERVICE shall not include YEARS OF SERVICE completed before
the BREAKS IN SERVICE. This paragraph (c) shall also apply to
a former PARTICIPANT who (1) terminated after January 1, 1985,
(2) has incurred less than five consecutive one-year BREAKS IN
SERVICE, (3) is reemployed by the COMPANY and (4) has not made
a repayment of his prior distribution under the provisions set
forth in Section 8.07 (Conditions for Repayment of Prior
Distribution Upon Reemployment).
(d) In the event a former PARTICIPANT is reemployed by the COMPANY
and he has not yet received any part of his COMPANY
CONTRIBUTION ACCOUNT or his DEFERRED WAGE ACCOUNT, he shall be
recredited with his COMPANY CONTRIBUTION ACCOUNT and his
DEFERRED WAGE ACCOUNT shall not be distributed to him until
his subsequent termination of employment.
8.07 CONDITIONS FOR REPAYMENT OF PRIOR DISTRIBUTION UPON REEMPLOYMENT
A former PARTICIPANT who is reemployed by the COMPANY prior to
incurring five or more consecutive one-year BREAKS IN SERVICE may
make a repayment to the PLAN in an amount equal to the entire
distribution he received on account of his prior termination of
employment. Such repayment will be credited to his PRIOR
- 23 -
PARTICIPANT ACCOUNT as a ROLLOVER CONTRIBUTION or a PRIOR
PARTICIPANT CONTRIBUTION, whichever is applicable. Upon a
subsequent termination of employment, in order to determine the
total vested amount of the COMPANY CONTRIBUTION ACCOUNT, the amount
of the repayment which was previously distributed to him from his
COMPANY CONTRIBUTION ACCOUNT and the INVESTMENT EARNINGS from the
date of repayment shall be considered as part of his COMPANY
CONTRIBUTION ACCOUNT. In order to determine the amount payable from
the COMPANY CONTRIBUTION ACCOUNT at the subsequent termination of
employment, the amount of the repayment and its INVESTMENT EARNINGS
shall be subtracted from the vested amount determined above. The
amount of the repayment, including INVESTMENT EARNINGS, shall always
be 100% vested and nonforfeitable.
Such repayment must be made before the earlier of five years after
the first date on which the PARTICIPANT is subsequently reemployed
by the COMPANY or the date the PARTICIPANT has incurred five one-
year BREAKS IN SERVICE. If such repayment is not made by such time,
the PARTICIPANT shall have permanently forfeited his right to the
FORFEITURE due to his previous RESIGNATION/DISMISSAL.
8.08 DETERMINATION OF ACCOUNT OF REEMPLOYED PARTICIPANT WHO HAS NOT
INCURRED A BREAK IN SERVICE
In the case of a partially vested PARTICIPANT whose employment with
the COMPANY terminated, but is reemployed by the COMPANY prior to
incurring a one-year BREAK IN SERVICE and such PARTICIPANT has
received a distribution of his ACCOUNT and such PARTICIPANT has not
made a repayment of such distribution, upon such PARTICIPANT'S
subsequent termination of employment for any reason, the then vested
portion of such PARTICIPANT'S COMPANY CONTRIBUTION ACCOUNT which
would be distributable shall be determined as follows:
(a) Add the amount of any distribution from his COMPANY
CONTRIBUTION ACCOUNT made to such PARTICIPANT as a result of
his prior termination of employment and not repaid to the then
current balance in his COMPANY CONTRIBUTION ACCOUNT;
(b) Multiply such sum by the applicable "non-forfeitable fraction"
as determined under Section 8.02 (Vesting Upon Retirement or
Death) or Section 8.03 (Vesting Upon Resignation/Dismissal);
and
(c) Subtract the amount of the prior distributions from his
COMPANY CONTRIBUTION ACCOUNT made to such PARTICIPANT under
the PLAN from such product.
8.09 VESTING OF A PARTICIPANT UPON TRANSFER OF EMPLOYMENT
Any person who transfers from employment with the COMPANY as an
EMPLOYEE directly to other employment with the COMPANY or a RELATED
CORPORATION in a capacity other than as an EMPLOYEE shall be deemed
by such transfer not to lose his YEARS OF SERVICE for any purpose.
In addition, he shall not be deemed to retire, or otherwise incur a
VESTING VALUATION DATE until such time as he is no longer in the
employment of the COMPANY or a RELATED CORPORATION. At such time he
- 24 -
shall be entitled to a distribution of his Account, if any, as
provided in Article 9 (Distribution of Accounts). Notwithstanding
any other provisions of the PLAN, during the period such person is
not an EMPLOYEE, he shall not share in the allocation of the COMPANY
CONTRIBUTION and FORFEITURE as set forth in Section 7.03 (Allocation
of Company Contribution and Forfeitures). For the purposes of
determining such person's vesting percentage under Article 8
(Vesting of Accounts) YEARS OF SERVICE with the COMPANY and/or
RELATED CORPORATION shall be determined as set forth in Section 1.49
(Year of Service).
[8.10] STATEMENT OF ACCOUNT
As soon as practicable after December 31 of each year each
PARTICIPANT shall be furnished with a statement reflecting the
condition of his ACCOUNTS as of such date.
Article 9
DISTRIBUTION OF ACCOUNTS
------------------------
9.01 MANNER OF DISTRIBUTION AND FURTHER ADJUSTMENTS
Subject to the conditions set forth below and the provisions of
Section 9.02 (Inservice Withdrawals), on a PARTICIPANT's VESTING
VALUATION DATE, any amounts to which he is entitled hereunder shall
be distributable to him, or to his BENEFICIARY if he is deceased.
Distribution can be made in either of the following ways, as the
PARTICIPANT determines:
(a) In a lump sum representing the full amount distributable at
the time of such distribution; or
(b) In a series of installments, annually or more frequently, over
a period not to exceed the life expectancy of the PARTICIPANT
or the life expectancy of the PARTICIPANT and his designated
BENEFICIARY, determined as of such PARTICIPANT's DISTRIBUTION
DATE; provided that, if such BENEFICIARY is not the
PARTICIPANT's spouse and is more than 10 years younger than
the PARTICIPANT, the installments shall be paid over a period
not exceeding the joint life expectancy of the PARTICIPANT and
a BENEFICIARY 10 years younger than the PARTICIPANT.
The life expectancy of a PARTICIPANT, his spouse or his designated
BENEFICIARY shall be determined by use of the expected return
multiples contained in the regulations under Section 72 of the CODE.
If a PARTICIPANT so elects, the life expectancy of the PARTICIPANT
and his spouse shall be recalculated annually. In the absence of
such an election, life expectancies shall not be recalculated.
Pursuant to such uniform and nondiscriminatory rules and procedures
as the INVESTMENT ADVISORY BOARD may adopt, a PARTICIPANT who has
elected installment payments may modify the installment period or
the frequency of payments, provided that all installment
- 25 -
distributions under the PLAN must comply with the requirements of
Section 401(a)(9) of the CODE.
Payments shall commence as promptly as is reasonably convenient
after a PARTICIPANT's VESTING VALUATION DATE, and, unless the
PARTICIPANT otherwise requests, in no event later than the Sixtieth
(60th) day after the close of the calendar year in which the VESTING
VALUATION DATE occurs; provided, however, that if the amount
distributable cannot be ascertained, payment may be made no later
than Sixty (60) days after the earliest date on which the amount
distributable to the PARTICIPANT can be ascertained.
As soon as the amount distributable to such PARTICIPANT or his
BENEFICIARY can reasonably be determined, then a separate
DISTRIBUTION ACCOUNT shall be established in respect of such
distribution in an amount determined under Sections 8.02 (Vesting
Upon Retirement or Death) or 8.03 (Vesting Upon Resignation/
Dismissal). The assets reflected in such DISTRIBUTION ACCOUNT shall
be increased or decreased as set forth in Section 7.02 (Accounting
Procedures); provided, however, that in no event shall the amount
distributed exceed the balance in such DISTRIBUTION ACCOUNT
immediately before such distribution and after such increase or
decrease is made in respect of the prior ACCOUNTING DATE. In the
event that an installment form of distribution is effective,
payments from each such DISTRIBUTION ACCOUNT will be made to the
extent practicable, pro rata from the various investment funds in
which the DISTRIBUTION ACCOUNT is invested, or as the INVESTMENT
ADVISORY BOARD may permit the PARTICIPANT to direct in accordance
with such uniform and nondiscriminatory rules and procedures as the
INVESTMENT ADVISORY BOARD may adopt for such purpose.
If a PARTICIPANT dies after his required commencement date (as
defined in Section 9.08), the remaining portion of his benefits must
be distributed over a period not exceeding the period over which
payments were being made to the PARTICIPANT. If a PARTICIPANT dies
before his required commencement date, his benefits must be
distributed over a period not exceeding the greatest of: (i) five
years from the death of the PARTICIPANT; (ii) in the case of
payments to a designated BENEFICIARY other than the PARTICIPANT's
spouse, the life expectancy of such BENEFICIARY, provided payments
begin within one year of the PARTICIPANT's death; or (iii) in the
case of payments to the PARTICIPANT's spouse, the life expectancy of
such spouse, provided payments begin by the date the PARTICIPANT
would have attained age 70-1/2. A PARTICIPANT may select, in
accordance with such rules as the INVESTMENT ADVISORY BOARD may
establish, the method of distributing his benefits to him; a
PARTICIPANT, if he so desires, may direct how his benefits are to be
paid to his BENEFICIARY; and the INVESTMENT ADVISORY BOARD shall
select the method of distributing the PARTICIPANT's benefits to his
BENEFICIARY if the PARTICIPANT has not filed a direction with the
INVESTMENT ADVISORY BOARD. All distributions under the PLAN shall
comply with the requirements of Section 401(a)(9) of the CODE and
the regulations thereunder. If a PARTICIPANT's vested ACCOUNT
balances exceed $3,500, distributions may not be made to the
PARTICIPANT before age 65 without his consent.
- 26 -
9.02 INSERVICE WITHDRAWALS
While it is the primary purpose of the PLAN to accumulate funds for
use of PARTICIPANTS when they retire, it is recognized that under
some circumstances it may be in the best interests of a PARTICIPANT
to permit a withdrawal by him while he continues in the active
employment of the COMPANY. Accordingly, the INVESTMENT ADVISORY
BOARD may permit a PARTICIPANT to make an inservice withdrawal from
his PRIOR PARTICIPANT ACCOUNT and, in hardship situations, the
INVESTMENT ADVISORY BOARD may permit a PARTICIPANT to make an
inservice withdrawal from his DEFERRED WAGE ACCOUNT.
A. Withdrawals from PRIOR PARTICIPANT ACCOUNT
The PARTICIPANT may make inservice withdrawals from his PRIOR
PARTICIPANT ACCOUNT from time to time only in such amounts as,
in the INVESTMENT ADVISORY BOARD's opinion, shall be
reasonably necessary in accordance with such procedures as the
INVESTMENT ADVISORY BOARD shall determine, but in no event
shall the cumulative amount of all such inservice withdrawals
made by a PARTICIPANT exceed the lesser of (a) the amount of
his total PRIOR PARTICIPANT CONTRIBUTIONS thereto, or (b) the
balance of his PRIOR PARTICIPANT ACCOUNT as of the ACCOUNTING
DATE immediately preceding such inservice withdrawal.
Payments of amounts withdrawn by a PARTICIPANT shall be made,
to the extent practicable, pro rata from the investment funds
in which the PARTICIPANT'S ACCOUNT is invested, or as the
INVESTMENT ADVISORY BOARD may permit the PARTICIPANT to direct
in accordance with such uniform and nondiscriminatory rules
and procedures as the INVESTMENT ADVISORY BOARD may adopt for
such purpose.
For purposes of this section, withdrawals shall be limited to
the following purposes:
1) Medical expenses of the PARTICIPANT, his spouse, or his
children or dependents;
2) Payment on an existing real estate mortgage on the
PARTICIPANT'S principal residence;
3) Repairs on the PARTICIPANT'S residence;
4) Post high school educational expenses of the
PARTICIPANT, his spouse, or his children or dependents;
or
5) Purchase of a new principal residence by the
PARTICIPANT.
The PLAN requires minimum withdrawal amounts for each
category. A minimum withdrawal of Five Hundred and 00/100
Dollars ($500.00) is required for medical and educational
expenses. A minimum withdrawal of One Thousand and 00/100
Dollars ($1,000.00) is required for payment of real estate
mortgages, repairs to a residence, or the purchase price of a
new residence; however, the minimum withdrawal provision is
- 27 -
waived for a PARTICIPANT who seeks a hardship withdrawal to
purchase his first residence.
The PLAN requires a PARTICIPANT to verify the amount of the
hardship by providing the INVESTMENT ADVISORY BOARD with the
following information:
1) Medical Expenses -- Attach the explanation of the
benefits statement received from the applicable Fort
Howard medical plan and the benefits statement of any
other insurance company which may be involved.
2) Payment on an Existing Real Estate Mortgage on Present
Residence -- Attach a letter addressed to the
PARTICIPANT from the present mortgage holder and signed
by an officer of said mortgage holder, if applicable,
detailing the following:
a) Current mortgage balance;
b) Address of residence;
c) Year residence was purchased;
d) Present monthly mortgage payments; and
e) Monthly payments after reduction of mortgage, if
applicable.
3) Major Repairs on Present Home
a) Attach a contractor's estimate showing date,
PARTICIPANT'S name and address, description of
work, itemized costs of materials and labor, and
contractor's signature; or
b) If the PARTICIPANT is doing the work himself, he
must attach a supplier's estimate showing the date,
PARTICIPANT'S name and address, and an itemized
cost of materials and the supplier's signature.
4) Educational Expenses
a) Name and relationship to PARTICIPANT of person
seeking post high school education;
b) A letter from the school, on school letterhead,
indicating that such person has been accepted for
enrollment, estimated cost of room and board, and
tuition by semester, quarter, or other applicable
payment period; and
c) The date this person is expected to begin school.
5) Purchase of New Residence
a) Submit a copy of the offer to purchase signed by
both seller and PARTICIPANT, which shall include:
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i) Address of new home to be purchased;
ii) Amount to be paid for new residence;
iii) Amount of downpayment and estimated closing
costs; and
iv) Amount of mortgage.
Note that iii) and iv) above will usually have to
be provided by the mortgage lender on company
letterhead and signed by an officer of the mortgage
lender.
b) Statement by the PARTICIPANT that the purchase of
this residence will constitute his principal
residence and also a statement as to whether or not
the residence is a single residence or a duplex.
In addition, the INVESTMENT ADVISORY BOARD may
require the PARTICIPANT to furnish paid receipts or
other information which would verify that the
withdrawal was used for the purpose stated by the
PARTICIPANT.
B. Withdrawals from DEFERRED WAGE ACCOUNT
The PARTICIPANT may make inservice hardship withdrawals from
his DEFERRED WAGE ACCOUNT from time to time only in such
amounts as, in the INVESTMENT ADVISORY BOARD's opinion, shall
be reasonably necessary in accordance with such procedures as
the INVESTMENT ADVISORY BOARD shall determine, but in no event
shall the cumulative amount of such inservice hardship
withdrawals made by a PARTICIPANT exceed the lesser of (a) the
amount of his total DEFERRED WAGE ACCOUNT CONTRIBUTIONS
thereto or (b) the balance of his DEFERRED WAGE ACCOUNT as of
the accounting date immediately preceding such inservice
hardship withdrawal.
A hardship distribution will not be allowed unless the
PARTICIPANT can demonstrate a financial hardship and the
distribution is necessary to satisfy such financial hardship.
For purposes of this subsection, "financial hardship" shall be
limited to the following:
1) Medical expenses, described in Internal Revenue Code
Section 213(d), incurred by the PARTICIPANT, his
spouse, or his children or dependents;
2) Purchase of a new principal residence by the
PARTICIPANT (excluding mortgage payments);
3) Payment of tuition for the next semester or quarter of
post-secondary education for the PARTICIPANT, his
spouse, or his children or dependents; or
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4) The need to prevent the eviction of the PARTICIPANT
from his principal residence or foreclosure on the
mortgage of the PARTICIPANT'S principal residence.
A distribution will be treated as necessary to satisfy a
financial hardship of a PARTICIPANT if all of the following
requirements are satisfied:
1) The distribution is not in excess of the amount of the
immediate and heavy financial need of the PARTICIPANT;
2) The PARTICIPANT has obtained all distributions, other
than inservice hardship withdrawals, and all nontaxable
loans currently available under all plans maintained by
the COMPANY;
3) The PARTICIPANT'S DEFERRED WAGE CONTRIBUTIONS shall be
suspended for 12 months after receipt of the
withdrawal; and
4) The PARTICIPANT may not make DEFERRED WAGE
CONTRIBUTIONS for the PARTICIPANT'S taxable year
immediately following the taxable year of the inservice
hardship withdrawal in excess of the applicable limit
under Section 402(g) of the CODE for such next taxable
year less the amount of such PARTICIPANT's DEFERRED
WAGE CONTRIBUTIONS for the taxable year of the
inservice hardship withdrawal.
The amount treated as necessary to satisfy a PARTICIPANT'S
financial hardship under this subsection shall include any
amounts necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated as a result of the
hardship distribution. The PLAN requires a minimum withdrawal
amount for each hardship category. A minimum withdrawal of
Five Hundred and 00/100 Dollars ($500.00) is required for
medical or educational hardship. A minimum withdrawal of One
Thousand and 00/100 Dollars ($1,000.00) is required for the
purpose of an EMPLOYEE'S purchase of a new principal
residence, for preventing an EMPLOYEE'S eviction from his
principal residence, or for preventing foreclosure of the
mortgage on an EMPLOYEE'S principal residence.
Payments of amounts withdrawn by a PARTICIPANT shall be made,
to the extent practicable, pro rata from the investment funds
in which the PARTICIPANT'S ACCOUNT is invested or as the
INVESTMENT ADVISORY BOARD may permit the PARTICIPANT to direct
in accordance with such uniform and nondiscriminatory rules
and procedures as the INVESTMENT ADVISORY BOARD may adopt for
such a purpose.
[9.03] REPAYMENTS OF INSERVICE WITHDRAWALS
An amount withdrawn by a PARTICIPANT may be partially or entirely
restored to his PRIOR PARTICIPANT ACCOUNT as of any ACCOUNTING DATE.
Amounts so restored thereafter shall be treated as contributions by
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him, except that they shall not be considered such for purposes of
Section 7.03 (Allocation of Company Contributions and Forfeitures)
or the contribution limitations imposed by Section 415 of the CODE.
[9.04] DESIGNATION OF BENEFICIARY
Each living PARTICIPANT, from time to time, may name a person(s) or
entity(ies) (who may be named contingently or successively) to whom
his ACCOUNT balances are to be paid in the case of his death before
he receives all of his benefits. If a PARTICIPANT designates
someone other than (or in addition to) his spouse as his primary
BENEFICIARY, his spouse must consent in writing to the designation.
Each designation shall revoke all prior designations by the same
PARTICIPANT in writing with the INVESTMENT ADVISORY BOARD during his
lifetime. If a deceased PARTICIPANT has failed to name a
BENEFICIARY in the manner provided above, or if the BENEFICIARY
named by a deceased PARTICIPANT dies before him or before complete
distribution of the PARTICIPANT'S ACCOUNT balances, the INVESTMENT
ADVISORY BOARD shall direct the TRUSTEE to distribute such
PARTICIPANT'S ACCOUNT BALANCES to the first surviving class of the
following successive preference beneficiaries:
(a) Widow or widower;
(b) Surviving children;
(c) Surviving parents;
(d) Surviving brothers and sisters; and
(e) Executors or administrators.
9.05 MISSING PARTICIPANTS OR BENEFICIARIES
Each PARTICIPANT and each BENEFICIARY of a deceased PARTICIPANT
shall file with the INVESTMENT ADVISORY BOARD from time to time in
writing his post office address and each change of post office
address, and any communication, statement, or notice addressed to a
PARTICIPANT or BENEFICIARY at his last post office address filed
with the INVESTMENT ADVISORY BOARD, or if no such address was filed
with the INVESTMENT ADVISORY BOARD then at his last post office
address as shown on the COMPANY'S records, shall be binding on the
PARTICIPANT or his BENEFICIARY for all purposes of the PLAN.
Neither the TRUSTEE nor the INVESTMENT ADVISORY BOARD shall be
obliged to search for or ascertain the whereabouts of any
PARTICIPANT or any BENEFICIARY. If the INVESTMENT ADVISORY BOARD
notifies any PARTICIPANT or BENEFICIARY of a deceased PARTICIPANT
that he is eligible for a distribution and also notifies him of the
provisions of this Section, and the PARTICIPANT or his BENEFICIARY
fails to claim his benefits or make his whereabouts known to the
INVESTMENT ADVISORY BOARD within three years thereafter, the
benefits of such PARTICIPANT or BENEFICIARY shall be reallocated to
the accounts of other PARTICIPANTS in the manner set forth in
Section 7.03 (Allocation of Company Contributions and Forfeitures)
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as an additional COMPANY CONTRIBUTION.
Any amounts so reallocated shall be deducted from the current
COMPANY CONTRIBUTION and again become payable to such PARTICIPANT or
BENEFICIARY upon filing of a written claim for benefits under the
PLAN with the INVESTMENT ADVISORY BOARD and upon furnishing evidence
of entitlement to such benefits as the INVESTMENT ADVISORY BOARD may
require.
9.06 DISTRIBUTION IN COMPANY SECURITIES
A PARTICIPANT may decide, in accordance with such rules as the
INVESTMENT ADVISORY BOARD may establish, whether his distributions
shall be made entirely or partially in securities of the COMPANY,
valued at their fair market value on the ACCOUNTING DATE immediately
preceding the DISTRIBUTION DATE.
9.07 ALTERNATE PAYEE DUE TO INCAPACITY
When a PARTICIPANT or the BENEFICIARY of a deceased PARTICIPANT is
(a) adjudged legally incompetent by a court of law, (b) a minor, or
(c) in the INVESTMENT ADVISORY BOARD's opinion is in any way
incapacitated so as to be unable to manage his financial affairs,
the INVESTMENT ADVISORY BOARD may direct the TRUSTEE to make
payments or distributions to the PARTICIPANT'S or BENEFICIARY'S
legal representatives or to a relative or friend of the PARTICIPANT
or BENEFICIARY for his benefit, or the INVESTMENT ADVISORY BOARD may
have the TRUSTEE apply the payment or distribution for the benefit
of the PARTICIPANT or BENEFICIARY in any manner that the INVESTMENT
ADVISORY BOARD determines.
9.08 COMMENCEMENT OF DISTRIBUTIONS
A PARTICIPANT who attains age 70-1/2 on or after January 1, 1988,
must commence receipt of his retirement benefit no later than
April 1 of the PLAN YEAR following the PLAN YEAR in which such
PARTICIPANT attains age 70-1/2 (his "required commencement date"),
regardless of whether he has terminated his employment with the
COMPANY or a RELATED CORPORATION. Notwithstanding the preceding
sentence, an active PARTICIPANT who owns (or is considered as owning
within the meaning of Section 318 of the CODE) 5% or more of the
stock of the COMPANY or a RELATED CORPORATION must commence to
receive his retirement benefit no later than April 1 of the PLAN
YEAR following the PLAN YEAR in which such active PARTICIPANT
attains age 70-1/2 (his "required commencement date"), regardless of
whether he has terminated his employment with the COMPANY or RELATED
CORPORATION.
9.09 DIRECT TRANSFER OF ELIGIBLE ROLLOVER DISTRIBUTIONS
Notwithstanding any provision of the PLAN to the contrary, a
"distributee" under the PLAN (as defined below) who receives an
"eligible rollover distribution" (as defined below) under Section
9.01 may elect, at the time and in the manner prescribed by the
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INVESTMENT ADVISORY BOARD, to have any portion of the distribution
paid directly to an "eligible retirement plan" (as defined below)
designated by the distributee in a direct rollover. An eligible
rollover distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that an
eligible rollover distribution does not include the following:
(a) Any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more;
(b) Any distribution to the extent such distribution is required
under CODE Section 401(a)(9); and
(c) The portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities).
An eligible retirement plan is an individual retirement account
described in CODE Section 408(a), an individual retirement annuity
described in CODE Section 408(d), 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 of a PARTICIPANT, an eligible
retirement plan is an individual retirement account or individual
retirement annuity. For purposes of the PLAN, a PARTICIPANT'S
surviving spouse and the PARTICIPANT'S spouse or former spouse who
is an alternate payee under a qualified domestic relations order, as
defined in CODE Section 414(p), are distributees with regard to
their respective interests.
Article 10
MISCELLANEOUS
-------------
10.01 INFORMATION TO BE FURNISHED BY PARTICIPANTS
PARTICIPANTS shall furnish to the TRUSTEE and the INVESTMENT
ADVISORY BOARD such evidence, data or information as the TRUSTEE and
the INVESTMENT ADVISORY BOARD respectively consider necessary or
desirable for the purpose of administering the PLAN. The benefits
provided under the PLAN for each such PARTICIPANT are upon the
condition that he will furnish full, true and complete evidence,
data and information required by the TRUSTEE and the INVESTMENT
ADVISORY BOARD.
- 33 -
10.02 INTERESTS NOT TRANSFERABLE
The interests of PARTICIPANTS under the PLAN are not in any way
subject to their debts or other obligations and may not be
voluntarily or involuntarily sold, transferred or assigned except as
may be set forth in a QUALIFIED DOMESTIC RELATIONS ORDER received by
the INVESTMENT ADVISORY BOARD. In the case of receipt of a domestic
relations order by the INVESTMENT ADVISORY BOARD, the PARTICIPANT
and the alternate payee (as defined in Section 1.38 (Qualified
Domestic Relations Order)) shall be notified within a reasonable
period of time of the receipt of such order and its procedures for
determining whether such order is a QUALIFIED DOMESTIC RELATIONS
ORDER. Notwithstanding any other provisions of the PLAN, benefits
payable to an alternate payee under the terms of a domestic
relations order determined to be a QUALIFIED DOMESTIC RELATIONS
ORDER shall be paid immediately in a lump sum unless the terms of
the QUALIFIED DOMESTIC RELATIONS ORDER provide for another method or
time of distribution, in which case distribution of the alternate
payee's benefits shall be made in accordance with the terms of the
QUALIFIED DOMESTIC RELATIONS ORDER.
10.03 ABSENCE OF GUARANTY
Neither the TRUSTEE, the INVESTMENT ADVISORY BOARD, nor the COMPANY
in any way guarantees the TRUST FUND from loss or depreciation. The
COMPANY does not guarantee the payment of any money which may be or
become due to any person under the PLAN, and the liability of the
TRUSTEE, the INVESTMENT ADVISORY BOARD and the COMPANY to make any
payment under the PLAN shall be limited to amounts held in ACCOUNTS
of the PLAN.
10.04 EMPLOYMENT RIGHTS
Participation in the PLAN shall not give any EMPLOYEE the right to
be retained in the service of the COMPANY, nor any right or claim to
any benefit under the PLAN unless such right or claim has
specifically accrued under the terms of the PLAN.
10.05 GENDER AND NUMBER
For the purposes of the PLAN and the TRUST, words in the masculine
gender shall include the feminine and neuter genders, the plural
shall include the singular and the singular shall include the
plural.
10.06 REVIEW OF BENEFIT DETERMINATIONS
The provisions of this Section 10.06 shall control with respect to
the resolution of claims for benefits under the PLAN. Whenever the
INVESTMENT ADVISORY BOARD decides for whatever reason to deny,
whether in whole or in part, a claim for benefits filed by any
person (hereinafter referred to as the "Claimant"), the INVESTMENT
ADVISORY BOARD shall transmit a written notice of its decision to
- 34 -
the Claimant within 90 days, which notice shall be written in a
manner calculated to be understood by the Claimant and shall contain
a statement of the specific reasons for the denial of the claim and
a statement advising the Claimant that, within 60 days of the date
on which he receives such notice, he may obtain review of the
decision of the INVESTMENT ADVISORY BOARD in accordance with the
procedures hereinafter set forth. Within such 60-day period, the
Claimant or his authorized representative may request that the claim
denial be reviewed by filing with the INVESTMENT ADVISORY BOARD a
written request therefore, which request shall contain the following
information:
(a) the date on which the Claimant's request filed with the
INVESTMENT ADVISORY BOARD; provided, however, that the date on
which the Claimant's request for review was in fact filed with
the INVESTMENT ADVISORY BOARD shall control in the event that
the date of the actual filing is later than the date stated by
the Claimant pursuant to this paragraph (a);
(b) the specific portions of the denial of his claim which the
Claimant requests the INVESTMENT ADVISORY BOARD to review;
(c) a statement by the Claimant setting forth the basis upon which
he believes the INVESTMENT ADVISORY BOARD should reverse its
previous denial of his claim for benefits and accept his claim
as made; and
(d) any written material (offered as exhibits) which the Claimant
desires the INVESTMENT ADVISORY BOARD to examine in its
consideration of his position as stated pursuant to
paragraph (c) of this Section 10.06.
Within 60 days of the date determined pursuant to paragraph (a) of
this Section 10.06, the INVESTMENT ADVISORY BOARD shall conduct a
full and fair review of its decision denying the Claimant's claim
for benefits. Within 60 days of the date of such hearing, the
INVESTMENT ADVISORY BOARD shall render its written decision on
review, written in a manner calculated to be understood by the
Claimant, specifying the reasons and PLAN provisions upon which its
decision was based.
10.07 ERISA
The PLAN shall be implemented and administered in accordance with
ERISA and any and all other applicable laws.
10.08 UNIFORM ADMINISTRATION
The PLAN, and any and all rules relating thereto, shall be
implemented and administered in a uniform and non-discriminatory
manner.
- 35 -
10.09 AMENDMENT OR DISCONTINUANCE
While the COMPANY expects to continue the PLAN, it must necessarily
reserve and has reserved the right to amend or discontinue the PLAN
at any time, provided that no amendment shall result in the return
or repayment to the COMPANY of any part of the TRUST FUND or the
income therefrom, or result in the distribution of the TRUST FUND
for the benefit of anyone other than PARTICIPANTS and former
PARTICIPANTS and other persons entitled to benefits under the PLAN,
except as provided in Section 10.14. PARTICIPANTS shall be notified
of such amendment or discontinuance within a reasonable time. Upon
partial or complete termination of the PLAN or upon permanent
discontinuance of COMPANY CONTRIBUTIONS under the PLAN, each
affected PARTICIPANT'S account balances shall be fully vested in him
and shall be distributed to him by any one or both of the methods
specified in Article 9 (Distribution of Accounts).
10.10 PLAN MERGER OR CONSOLIDATION
In the event of any merger or consolidation of the PLAN with, or
transfer of assets or liabilities to, any other plan, each
PARTICIPANT in the PLAN must be entitled, if the other plan is then
terminated, to receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the
benefit the PARTICIPANT would have been entitled to receive
immediately before the merger, consolidation or transfer if the PLAN
had then terminated.
10.11 TRUST AGREEMENT
Attention is directed to the fact that the TRUST implements the
PLAN. A copy of the TRUST is on file at the office of the Secretary
of the COMPANY where it may be examined by any PARTICIPANT if he so
desires. The provisions of and benefits under the PLAN are subject
to the terms of the TRUST.
10.12 WISCONSIN LAW TO GOVERN
This PLAN shall be construed and regulated and its validity and
effect and the rights hereunder of all parties interested shall at
all times be determined, and this PLAN shall be administered in
accordance with the laws of the State of Wisconsin, subject,
however, to applicable provisions of ERISA, and the CODE, as the
same may, from time to time, be amended. Notwithstanding anything
to the contrary, in the event of a conflict between the TRUST and
the PLAN regarding the applicability of state law, the provisions of
this PLAN shall govern.
In case any provision of this PLAN and/or TRUST shall be held
illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining parts of the PLAN and/or TRUST, but
the PLAN and/or TRUST shall be construed and enforced as if said
illegal and invalid provisions had never been inserted herein.
- 36 -
10.13 STOCK RIGHTS OF PARTICIPANTS
(a) Voting Rights. For purposes of this Section, COMPANY
Securities means any voting stock issued by the COMPANY. Each
PARTICIPANT (or, in the event of his death, his BENEFICIARY)
shall have the right to direct the TRUSTEE as to the manner in
which his proportionate share of COMPANY Securities held in
the TRUST FUND are to be voted on each matter brought before
an annual or special stockholders' meeting of the COMPANY.
Before each such meeting of stockholders, the INVESTMENT
ADVISORY BOARD shall cause to be furnished to each PARTICIPANT
(or BENEFICIARY) a copy of the proxy solicitation material,
together with a form requesting confidential directions on how
such PARTICIPANT'S proportionate share of COMPANY Securities
held in the TRUST FUND shall be voted on each such matter.
Upon timely receipt of such directions, the TRUSTEE shall on
each such matter vote as directed a number of shares
(including fractional shares) of COMPANY Securities
representing the PARTICIPANT'S proportionate share of COMPANY
Securities held in the TRUST FUND. The instructions received
by the TRUSTEE from PARTICIPANTS shall be held by the TRUSTEE
in confidence and shall not be divulged or released to any
person, including officers or employees of the COMPANY or any
RELATED CORPORATION. The TRUSTEE shall vote shares with
respect to which it has not received direction in the same
proportion as shares with respect to which it has received
PARTICIPANTS' (or BENEFICIARIES') directions.
(b) Rights on Tender or Exchange Offer. Each PARTICIPANT (or, in
the event of his death, his BENEFICIARY) for purposes of this
Section 10.13(b) is hereby designated a "named fiduciary"
within the meaning of Section 403(a)(1) of ERISA and shall
have the right, to the extent of his proportionate share of
COMPANY Securities held in the TRUST FUND, to direct the
TRUSTEE in writing as to the manner in which to respond to a
tender or exchange offer with respect to shares of COMPANY
Securities. The INVESTMENT ADVISORY BOARD shall use its best
efforts to timely distribute or cause to be distributed to
each PARTICIPANT (or BENEFICIARY) such information as will be
distributed to stockholders of the COMPANY in connection with
any such tender or exchange offer. Upon timely receipt of
such instructions, the TRUSTEE shall respond as instructed
with respect to a number of shares of COMPANY Securities
representing such PARTICIPANT'S proportionate share of COMPANY
Securities held in the TRUST FUND. The instructions received
by the TRUSTEE from PARTICIPANTS shall be held by the TRUSTEE
in confidence and shall not be divulged or released to any
person, including officers or employees of the COMPANY or any
RELATED CORPORATION. If the TRUSTEE shall not receive timely
instruction from a PARTICIPANT (or BENEFICIARY) as to the
manner in which to respond to such a tender or exchange offer,
the TRUSTEE shall not tender or exchange any shares of COMPANY
Securities with respect to which such PARTICIPANT has the
right of direction.
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10.14 NO INTEREST IN COMPANY
The COMPANY shall have no right, title or interest in the TRUST
FUND, nor shall any part of the TRUST FUND revert or be repaid to
the COMPANY, directly or indirectly, unless:
(a) a contribution is made by the COMPANY by mistake of fact and
such contribution is returned to the COMPANY within one year
after payment to the TRUSTEE; or
(b) a contribution conditioned on the deductibility thereof is
disallowed as an expense for federal income tax purposes and
such contribution (to the extent disallowed) is returned to
the COMPANY within one year after the disallowance of the
deduction.
The amount of any contribution that may be returned to the
COMPANY pursuant to subparagraph (a) or (b) above must be
reduced by any portion thereof previously distributed from the
TRUST FUND and by any losses of the TRUST FUND allocable
thereto, and in no event may the return of such contribution
cause any PARTICIPANT's ACCOUNTS to be less than the amount of
such ACCOUNTS had the contribution not been made under the
PLAN.
Article 11
TOP HEAVY RESTRICTIONS
----------------------
11.01 DEFINITIONS
For purposes only of this Article 11 (Top Heavy Restrictions), the
following definitions shall apply in addition to those set forth in
Article 1 (Definitions). In case of a conflict, the definitions in
this Section 11.01 (Definitions) shall supersede Article 1
(Definitions).
(a) "REQUIRED AGGREGATION GROUP" means (i) each qualified
retirement plan sponsored by the COMPANY or any RELATED
CORPORATION in which a KEY EMPLOYEE is a participant and (ii)
each other qualified retirement plan which enables any plan
described in subparagraph (i) to meet the requirements of the
CODE as they apply to coverage, participation and non-
discrimination requirements as set forth in Sections 401(a)(4)
and 410 of the CODE.
(b) "PERMISSIVE AGGREGATION GROUP" means a group of plans
consisting of any qualified retirement plan sponsored by the
COMPANY or any RELATED CORPORATION not required to be part of
the REQUIRED AGGREGATION GROUP plus any plans which are in the
REQUIRED AGGREGATION GROUP provided that when taken
collectively the plans continue to meet the requirements of
the CODE as they apply to coverage, participation and non-
discrimination requirements as set forth in Sections 401(a)(4)
and 410 of the CODE.
- 38 -
(c) "KEY EMPLOYEE" means any employee of the COMPANY or any
RELATED CORPORATION who is participating in a retirement plan
sponsored by the COMPANY or any RELATED CORPORATION as of the
DETERMINATION DATE who at any time during the PLAN YEAR or
any four (4) preceding PLAN YEARS is (was) (i) an officer of
the COMPANY or any RELATED CORPORATION having an annual
compensation from the COMPANY or a RELATED CORPORATION
greater than fifty percent (50%) of the amount in effect
under Section 415(b)(1)(A) of the CODE for any such PLAN
YEAR, (ii) one of the ten (10) EMPLOYEES having an annual
compensation from the COMPANY or a RELATED CORPORATION
greater than the limitation in effect under Section
415(c)(1)(A) of the CODE and owning (or is considered as
owning within the meaning of Section 318 of the CODE) the
largest interests in the COMPANY or any RELATED CORPORATION,
(iii) a 5% stockholder (or is considered as owning 5% or more
of the stock within the meaning of Section 318 of the CODE) of
the COMPANY or any RELATED CORPORATION, or (iv) a 1%
stockholder (or is considered as owning 1% or more of the
stock within the meaning of Section 318 of the CODE) of the
COMPANY or any RELATED CORPORATION and having an annual
compensation paid by the COMPANY or any RELATED CORPORATION in
excess of $150,000. For purposes of (i) above, no more than
fifty (50) EMPLOYEES (or, if lesser, the greater of 3
EMPLOYEES or ten percent (10%) of the EMPLOYEES) shall be
treated as officers.
(d) "NON-KEY EMPLOYEE" means any employee of the COMPANY or any
RELATED CORPORATION who is not a KEY EMPLOYEE.
(e) "DETERMINATION DATE" means each December 31, beginning with
December 31, 1983.
(f) "EMPLOYEE" means any employee of the COMPANY or any RELATED
CORPORATION who is a KEY EMPLOYEE or a NON-KEY EMPLOYEE.
(g) "VALUATION DATE" means each December 31, beginning with
December 31, 1983.
(h) "AGGREGATION GROUP" means either a REQUIRED AGGREGATION GROUP
and/or a PERMISSIVE AGGREGATION GROUP.
11.02 TOP HEAVY DEFINED
This PLAN will be deemed "top-heavy" and notwithstanding any other
provisions of this PLAN, this Article 11 (Top Heavy Restrictions)
shall apply as of the beginning of the PLAN YEAR following the
DETERMINATION DATE if as of the DETERMINATION DATE this PLAN is a
plan in the REQUIRED AGGREGATION GROUP and the sum of (a) and (b)
below exceeds 60 percent of a similar sum determined for all
EMPLOYEES of the AGGREGATION GROUP.
(a) the aggregate present value based upon the immediately
preceding VALUATION DATE (using the applicable actuarial
assumptions used in the valuation of the applicable plan) of
the benefits payable to all KEY EMPLOYEES under all the
defined benefit plans of the AGGREGATION GROUP as if all KEY
- 39 -
EMPLOYEES terminated their employment on the DETERMINATION
DATE; and
(b) the aggregate account balances, as of the most recent
valuation, of all KEY EMPLOYEES (excluding any balances
attributable to rollover contributions made after December 31,
1983, from another qualified retirement plan of another
employer) who are participants in any defined contribution
plan of the AGGREGATION GROUP.
(c) In making the determinations, the following rules shall apply:
(i) Such sum shall be increased by the aggregate
distributions, if any, made to any former or current
EMPLOYEE during the 5-year period ending on the
DETERMINATION DATE, including distributions under a
terminated plan which, if it had not been terminated,
would have been included in the REQUIRED AGGREGATION
GROUP.
(ii) The present value determined in (a) or the account
balance determined in (b) of this Section 11.02 (Top
Heavy Defined) for a current or former employee who was
previously a KEY EMPLOYEE but who is no longer a KEY
EMPLOYEE, shall be disregarded.
(iii) The present value determined in (a) or the account
balance determined in (b) of this Section 11.02 (Top
Heavy Defined) for a beneficiary of a former EMPLOYEE
shall be considered the present value or account
balance of the former EMPLOYEE.
(iv) On and after January 1, 1985, the present value
determined in (a) or account balance determined in (b)
of this Section 11.02 (Top Heavy Defined) on behalf of
a former EMPLOYEE shall not be taken into account if
such former EMPLOYEE had not performed any services for
the COMPANY or a RELATED CORPORATION at any time during
the 5 year period ending on the DETERMINATION DATE.
(v) The actuarial assumptions used for measuring accrued
benefits under all defined benefit plans in the
REQUIRED AGGREGATION GROUP shall be identical.
(vi) The present value determined in (a) or the account
balance determined in (b) of this Section 11.02 for a
current or former EMPLOYEE who is not a KEY EMPLOYEE
shall be determined under the method that is used for
all plans of the COMPANY and RELATED CORPORATIONS, or
if there is no such method, as if such benefits accrued
no more rapidly than the slowest accrual rate permitted
under Section 411(b)(1)(C) of the CODE.
11.03 VESTING PROCEDURES
(a) In the event this PLAN is determined "top-heavy", only for the
PLAN YEAR during which this Article 11 (Top Heavy
- 40 -
Restrictions) applies, the vesting provisions of this
Section 11.03 (Vesting Provisions) shall apply and
Section 8.03 (Vesting Upon Resignation/Dismissal) shall be
inapplicable.
(b) A PARTICIPANT (i) who completes an HOUR OF SERVICE in a PLAN
YEAR during which the PLAN is deemed to be "top-heavy", and
(ii) who has at least two (2) YEARS OF SERVICE, and (iii)
whose employment terminates for any reason other than death
and (iv) who is not 100% vested due to RETIREMENT or death as
specified in Section 8.02 (Vesting Upon Retirement or Death)
shall be vested as of his VESTING VALUATION DATE based upon
the table in paragraph (e) below.
(c) The vested percentage of the COMPANY CONTRIBUTION ACCOUNT of a
PARTICIPANT whose employment with the COMPANY terminates
within a PLAN YEAR during which the PLAN IS "top heavy" shall
be based upon the table below and the YEARS OF SERVICE as of
such PARTICIPANT'S VESTING VALUATION DATE.
Percent of COMPANY
YEARS OF SERVICE CONTRIBUTION ACCOUNT
as of a VESTING as of a VESTING
VALUATION DATE VALUATION DATE
---------------- --------------------
2 20
3 40
4 60
5 80
6 or more 100
(d) In any succeeding PLAN YEAR during which this PLAN is not "top
heavy", any active PARTICIPANT who has three or more YEARS OF
SERVICE as of the last day of the PLAN YEAR during which the
PLAN is "top-heavy" will be permitted to make an election
whether his COMPANY CONTRIBUTION ACCOUNT will continue to vest
on the table set forth in paragraph (c) above or the basis set
forth in Section 8.03 (Vesting Upon Resignation/Dismissal) of
the PLAN.
(e) any succeeding PLAN YEAR during which this PLAN is not "top-
heavy," the dollar amount of the vested percentage of the
COMPANY CONTRIBUTION ACCOUNT of any PARTICIPANT shall not be
less than the dollar amount of the vested percentage of the
COMPANY CONTRIBUTION ACCOUNT (including the INCREMENT) of such
PARTICIPANT as of the day immediately preceding the beginning
of the first PLAN YEAR in which the PLAN is not "top-heavy."
11.04 MINIMUM BENEFITS FOR NON-KEY EMPLOYEES
(a) In the event this PLAN is determined "top-heavy," a NON-KEY
EMPLOYEE who is an active PARTICIPANT of this PLAN as of the
end of the PLAN YEAR of the December 31 of a PLAN YEAR in
which the PLAN is "top-heavy" shall be entitled to a minimum
allocation of the COMPANY CONTRIBUTION in lieu of the
allocation of the COMPANY CONTRIBUTION set forth in Section
7.03 (Allocation of Company Contributions and Forfeitures) (if
- 41 -
such allocation results in a lesser amount) of three percent
(3%) of the PARTICIPANT'S total cash compensation from the
COMPANY (as stated on such PARTICIPANT'S Wage and Tax
Statement (Form W-2)).
(b) For the PLAN YEAR beginning January 1, 1984, if the allocation
for each KEY EMPLOYEE under Section 7.03 (Allocation of
Company Contribution and Forfeitures), when combined with the
DEFERRED WAGE CONTRIBUTIONS of such KEY EMPLOYEE does not
exceed three percent (3%) of the lesser of $200,000 or the
PARTICIPANT'S total cash compensation from the COMPANY (as
stated on such PARTICIPANT'S Wage and Tax Statement (Form
W-2)) for the year in which the PLAN is determined to be "top-
heavy," then the minimum benefit outlined in paragraph (a) of
this Section 11.04 (Minimum Benefits for Non-Key Employees)
shall be the highest percentage determined for a KEY EMPLOYEE
based upon this paragraph (b).
(c) For any PLAN YEAR beginning on or after January 1, 1985, the
alternative minimum outlined in paragraph (b) above shall be
determined based upon the allocation under Section 7.03
(Allocation of Company Contribution and Forfeitures) when
compared to the lesser of $200,000 or the PARTICIPANT's total
cash compensation from the COMPANY (as stated on such
PARTICIPANT's Wage and Tax Statement (Form W-2)) for the year.
11.05 MAXIMUM ANNUAL COMPENSATION
In the event the PLAN is determined to be "top-heavy," the maximum
annual compensation taken into account, if any, to determine
benefits under the PLAN shall be $200,000 (as adjusted for cost of
living increases in the same manner as the dollar amount contained
in Section 415(c)(1)(A) of the CODE). This section shall only apply
during any PLAN YEAR in which the PLAN is "top-heavy."
11.06 FORMULA FOR DETERMINING COMPANY CONTRIBUTIONS
In the event this PLAN is determined "top heavy," Exhibit A (Formula
for Determining Contributions under Fort Howard [Paper Company]
Profit Sharing Retirement Plan) shall be superseded to the extent to
permit Section 11.04 (Minimum Benefits for Non-Key Employees) to be
effective, provided, however, the COMPANY shall not be required to
contribute more than the amount deductible as an expense for
purposes of federal taxes on income.
11.07 SECTION 416 OF THE CODE AND ITS REGULATIONS
In the event that any or all of the Sections 11.01 (Definitions),
11.02 (Top Heavy Defined), 11.03 (Vesting Provisions), 11.04
(Minimum Benefits for Non-Key Employees) and 11.05 (Maximum Annual
Compensation) do not fully comply with Section 416 of the CODE and
the regulations issued thereunder, Section 416 of the CODE and its
regulations shall supersede and replace the Section of the PLAN
which is not in full compliance.
- 42 -
11.08 NO DUPLICATION OF BENEFITS
If the COMPANY maintains more than one qualified retirement plan,
the minimum contribution otherwise required by Section 11.04
(Minimum Benefit for Non-Key Employees) may be reduced in accordance
with regulations of the Secretary of the Treasury to prevent
inappropriate duplication of minimum contributions or benefits.
Article 12
INVESTMENT ADVISORY BOARD
-------------------------
12.01 MEMBERSHIP
An INVESTMENT ADVISORY BOARD consisting of such number of persons
(who may but need not be employees of the COMPANY) as determined by
the Chief Executive Officer of the COMPANY shall be appointed by the
Chief Executive Officer of the COMPANY. The Secretary of the
COMPANY shall certify to the TRUSTEE from time to time the
appointment to (and termination of) office of each member of the
INVESTMENT ADVISORY BOARD and the person who is selected as
secretary of the INVESTMENT ADVISORY BOARD.
12.02 GENERAL POWERS, RIGHTS AND DUTIES
Except as otherwise specifically provided and in addition to the
powers, rights and duties specifically given to the INVESTMENT
ADVISORY BOARD elsewhere in the PLAN and the TRUST, the INVESTMENT
ADVISORY BOARD shall have the following discretionary powers, rights
and duties:
(a) To select a secretary, if it believes it advisable, who may
but need not be a member of the INVESTMENT ADVISORY BOARD.
(b) To determine all questions arising under the PLAN, including
the power to determine the rights or eligibility of EMPLOYEES
or PARTICIPANTS and any other persons, and the amounts of
their benefits under the PLAN, and to remedy ambiguities,
inconsistencies or omissions.
(c) To adopt such rules of procedure and regulations as in its
opinion may be necessary for the proper and efficient
administration of the PLAN as are consistent with the PLAN and
TRUST.
(d) To enforce the PLAN in accordance with the terms of the PLAN
and the TRUST and the rules and regulations adopted by the
INVESTMENT ADVISORY BOARD as above.
(e) To direct the TRUSTEE as respects payments or distributions
from the TRUST FUND in accordance with the provisions of the
PLAN.
- 43 -
(f) To furnish the COMPANY with such information as may be
required by it for tax or other purposes in connection with
the PLAN.
(g) To employ agents, attorneys, accountants, actuaries or other
persons (who also may be employed by the COMPANY) and to
allocate or delegate to them such powers, rights and duties as
the INVESTMENT ADVISORY BOARD may consider necessary or
advisable to properly carry out administration of the PLAN,
provided that such allocation or delegation and the acceptance
thereof by such agents, attorneys, accountants, actuaries or
other persons, shall be in writing.
12.03 MANNER OF ACTION
During a period in which two or more members of the INVESTMENT
ADVISORY BOARD are acting, the following provisions apply where the
context admits:
(a) A member of the INVESTMENT ADVISORY BOARD by writing may
delegate any or all of his rights, powers, duties and
discretions to any other member, with the consent of the
latter.
(b) The members of the INVESTMENT ADVISORY BOARD may act by
meeting or by writing signed without meeting, and may sign any
document by signing one document or concurrent documents.
(c) An action or a decision (which may be taken without a meeting)
of a majority of the members of the INVESTMENT ADVISORY BOARD
as to a matter shall be as effective as if taken or made by
all members of the INVESTMENT ADVISORY BOARD.
(d) If, because of the number qualified to act, there is an even
division of opinion among the members of the INVESTMENT
ADVISORY BOARD as to a matter, a disinterested party selected
by the INVESTMENT ADVISORY BOARD shall decide the matter and
his decision shall control.
(e) Except as otherwise provided by law, no member of the
INVESTMENT ADVISORY BOARD shall be liable or responsible for
an act or omission of the other members of the INVESTMENT
ADVISORY BOARD in which the former has not concurred.
(f) The certificate of the secretary of the INVESTMENT ADVISORY
BOARD or of a majority of the members of the INVESTMENT
ADVISORY BOARD that the INVESTMENT ADVISORY BOARD has taken or
authorized any action shall be conclusive in favor of any
person relying on the certificate.
12.04 INTERESTED MEMBER
If a member of the INVESTMENT ADVISORY BOARD also is a PARTICIPANT
in the PLAN, he may not decide or determine any matter or question
concerning distributions of any kind to be made to him or the nature
or mode of settlement of his benefits unless such decision or
- 44 -
determination could be made by him under the PLAN if he were not
serving on the INVESTMENT ADVISORY BOARD.
12.05 RESIGNATION OR REMOVAL OF MEMBERS
A member of the INVESTMENT ADVISORY BOARD may be removed by the
Chief Executive Officer of the COMPANY at any time. A member of the
INVESTMENT ADVISORY BOARD may resign at any time. The Chief
Executive Officer of the COMPANY may fill any vacancy in the
membership of the INVESTMENT ADVISORY BOARD. The Chief Executive
Officer of the COMPANY shall give prompt written notice thereof to
the other members of the INVESTMENT ADVISORY BOARD. Until any such
vacancy is filled, the remaining members may exercise all of the
powers, rights and duties conferred on the INVESTMENT ADVISORY
BOARD.
12.06 EXPENSES
All costs, charges and expenses reasonably incurred by the
INVESTMENT ADVISORY BOARD will be paid from the Trust Fund or by the
COMPANY, as directed by the Investment Advisory Board. No
compensation will be paid to a member of the INVESTMENT ADVISORY
BOARD as such.
12.07 INFORMATION REQUIRED
Each person entitled to benefits under the PLAN must file with the
INVESTMENT ADVISORY BOARD from time to time in writing such person's
post office address and each change of post office address. Any
communication, statement or notice addressed to any person at the
last post office address filed with the INVESTMENT ADVISORY BOARD
will be binding upon such person for all purposes of the PLAN. Each
person entitled to benefits under the PLAN also shall furnish the
INVESTMENT ADVISORY BOARD with such documents, evidence, data or
information as the INVESTMENT ADVISORY BOARD considers necessary or
desirable for the purpose of administering the PLAN. The COMPANY
shall furnish the INVESTMENT ADVISORY BOARD with such data and
information as the INVESTMENT ADVISORY BOARD may deem necessary or
desirable in order to administer the PLAN. The records of the
COMPANY as to an EMPLOYEE'S or PARTICIPANT'S period of employment,
HOURS OF SERVICE, RESIGNATION/DISMISSAL and the reason therefore,
LEAVE OF ABSENCE, reemployment and ANNUAL BASE PAY will be
conclusive on all persons unless determined to the INVESTMENT
ADVISORY BOARD'S satisfaction to be incorrect.
12.08 UNIFORM RULES
The INVESTMENT ADVISORY BOARD shall administer the PLAN on a
reasonable and nondiscriminatory basis and shall apply uniform rules
to all persons similarly situated.
- 45 -
12.09 REVIEW OF BENEFIT DETERMINATIONS
The INVESTMENT ADVISORY BOARD will provide notice in writing to any
PARTICIPANT or BENEFICIARY whose claim for benefits under the PLAN
is denied and the INVESTMENT ADVISORY BOARD shall afford such
PARTICIPANT or BENEFICIARY a full and fair review of its decision if
so requested.
12.10 FINAL DECISION
Subject to applicable law, any interpretation of the provisions of
the PLAN and any decisions on any matter within the discretion of
the INVESTMENT ADVISORY BOARD made by the INVESTMENT ADVISORY BOARD
in good faith shall be binding on all persons. A misstatement or
other mistake of fact shall be corrected when it becomes known and
the INVESTMENT ADVISORY BOARD shall make such adjustment on account
thereof as it considers equitable and practicable.
- 46 -
EXHIBIT A
---------
FORMULA FOR DETERMINING COMPANY CONTRIBUTIONS UNDER
FORT HOWARD CORPORATION PROFIT SHARING RETIREMENT PLAN
------------------------------------------------------
1. Subject to the conditions and limitations set forth below, beginning
with the calendar year ending December 31, 1988, each year the
COMPANY shall contribute to the TRUSTEE an amount equal to ten
percent (10%) of its adjusted profits (as defined below) for such
year, subject always to the following limitations:
(a) The COMPANY CONTRIBUTION in accordance with the above FORMULA
shall in no event exceed an amount equal to ten percent (10%)
of the ANNUAL BASE PAY of PARTICIPANTS in the PLAN during such
year.
(b) The COMPANY CONTRIBUTION in accordance with the above FORMULA
shall in no event reduce its net profits (as defined below) to
less than an amount equal to six percent (6%) of the COMPANY'S
net worth (as defined below) as of the beginning of such year.
(c) If, in any year, beginning with the year 1951, the COMPANY
incurs a loss (as defined below), or its net profits are less
than an amount equal to six percent (6%) of the COMPANY's net
worth as of the beginning of such year, the amount of any such
loss plus the amount of any such deficiency in net profits
shall be carried forward and charged to net profits in the
next succeeding year or years, and the COMPANY shall not make
any COMPANY CONTRIBUTION in accordance with this FORMULA in
any succeeding year unless and until its net profits in such
year exceed the sum of:
(i) six percent (6%) of the COMPANY'S net worth as at the
beginning of that year, plus
(ii) the total of such accumulated losses and deficiencies
in net profits carried forward from the preceding year
or years and not charged to subsequent net profits as
above.
Notwithstanding the amount of the contribution, if any, determined
by application of the foregoing provisions of this paragraph, the
Company may pay to the TRUSTEE under the PLAN for any year such
amount or amounts as the Board of Directors of the Company may
determine by resolution. The resolution shall designate the plan
year on account of which the contribution is made. Such resolution,
whether adopted before or after the close of the Company's fiscal
year, shall specify the amount of the contribution or a definite
basis or formula by which the amount can be determined within a
reasonable time after the close of such year.
2. The term "adjusted profits" or "loss" as used above for any year
mean net income or net loss for such year determined according to
recognized accounting principles and practices except as follows:
- A-1 -
(a) Gains or losses on the sale or other disposition of capital
assets (such as land, buildings, machinery, etc.) or
securities (including treasury stock) held for investment
purposes shall be disregarded.
(b) The net proceeds from life insurance in excess of cash
surrender value recorded on the COMPANY'S books, and gains
from fires, condemnations, or other involuntary conversions
shall be disregarded.
(c) Reasonable reserves for renegotiation liability, as determined
by the COMPANY in accordance with recognized accounting
principles and practices, and reasonable reserves of a type or
character allowed or allowable as deductions for federal
income tax purposes shall be charged to such net income or
increase the amount of any net loss, but reserves for other
contingencies shall be disregarded.
(d) No deduction or allowance on account of federal or state
income and excess profits taxes shall be made.
(e) No account shall be taken of the COMPANY CONTRIBUTION under
the PLAN for that year.
(f) Any liability for renegotiation in excess of amounts charged
to prior net income shall be charged to net income or increase
the amount of any net loss, and any credit balance in any
reserve for renegotiation shall be added to net income or
reduce the amount of any net loss in the year when final
determination of the liability is made.
(g) Unless otherwise specifically provided for under (a) through
(f) above, any amount or amounts representing adjustments to
income which are charged directly to the surplus account
during that year shall be deducted from net income or increase
the amount of any net loss as otherwise determined for that
year.
3. The term "net profits" for any year as used above means adjusted
profits, as defined above, plus the amount of any refund received in
that year on account of overassessment of federal or state income
and excess profits taxes applicable to years subsequent to 1950,
less the sum of the following:
(a) any federal or state income and excess profits taxes accrued
for such year;
(b) any COMPANY CONTRIBUTIONS to the TRUSTEE for such year; and
(c) any deficiency paid in that year on account of federal or
state income and excess profits taxes for any year subsequent
to 1950.
- A-2 -
4. The term "net worth" as of any date means the sum of:
(a) The par or stated value of all issued and outstanding stock of
the COMPANY (excluding treasury stock);
(b) paid-in or capital surplus, excluding surplus arising from
revaluation of assets;
(c) earned surplus and undivided profits; and
(d) reserves for contingencies (other than reserves for bad debts,
depreciation, renegotiation, discounts, self-insurance,
replacement of inventories, and similar items of a specific
nature); all as determined in accordance with recognized
accounting principles and practices.
- A-3 -
Exhibit 4.2
-----------
AMENDMENT NO. 10
TO THE FORT HOWARD CORPORATION
PROFIT SHARING RETIREMENT PLAN
------------------------------
WHEREAS, Section 10.09 of the Fort Howard Corporation Profit Sharing
Retirement Plan, as amended and restated effective as of January 1, 1985 (the
"Plan"), provides that the Plan may be amended by Fort Howard Corporation (the
"Company") in accordance with the terms of such Section; and
WHEREAS, the Company desires to amend the Plan;
NOW, THEREFORE, Section 10.09 of the Plan is hereby amended, effective
as of the date below, by adding the following paragraph at the end of that
Section:
"The INVESTMENT ADVISORY BOARD shall have the power
to amend the PLAN and/or the TRUST; provided that,
notwithstanding the foregoing, the INVESTMENT
ADVISORY BOARD shall not have the power to adopt
any PLAN or TRUST amendment, or take any other
action, that would result in:
(a) a substantial increase in the cost of funding
or administering the PLAN, unless the
INVESTMENT ADVISORY BOARD reasonably believes
that such amendment or action is necessary to
maintain compliance of the PLAN or TRUST with
ERISA, or any other applicable law, or to
maintain the PLAN's or TRUST's qualification
under, or compliance with, provisions of the
CODE, as from time to time in effect;
(b) Disqualification, termination or partial
termination of the PLAN or loss of tax-exempt
status of the TRUST;
(c) The appointment or removal of the TRUSTEE or
PLAN ADMINISTRATOR;
(d) A change in the structure, or a material
change in the powers, duties or
responsibilities, of the INVESTMENT ADVISORY
BOARD, or a change in the indemnification of
any fiduciary of the PLAN or TRUST; or
(e) A change in the power, duties or
responsibilities of the Board of Directors of
the COMPANY under the PLAN;
- 2 -
unless such amendment or action is approved or
ratified by the Board of Directors of the COMPANY."
Executed this 21st day of September, 1995.
FORT HOWARD CORPORATION
By: /s/Donald H. DeMeuse
--------------------------------
Title: Chairman and Chief Executive Officer
Exhibit 4.3
-----------
AMENDMENT NO. 11
TO THE FORT HOWARD CORPORATION
PROFIT SHARING RETIREMENT PLAN
------------------------------
WHEREAS, Section 10.09 of the Fort Howard Corporation Profit Sharing
Retirement Plan, as amended and restated effective January 1, 1985 (the
"Plan"), provides that the Plan may be amended by the Fort Howard Corporation
Profit Sharing Retirement Plan Investment Advisory Board (the "Board") in
accordance with the terms of such Section; and
WHEREAS, the Board desires to amend the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Section 1.18 of the Plan is hereby amended, effective January 1,
1996, by adding the following sentences at the end of that
section:
The term EMPLOYEE shall also include any other person who is
not an EMPLOYEE as defined in the preceding sentence, but
who is a citizen of the United States, and who was employed
by the COMPANY and transfers to employment on a salaried
basis outside the United States with a foreign affiliate (as
defined in Code Section 3121(l)(8)); provided the
requirements of Code Section 406 are satisfied with respect
to that individual. An EMPLOYEE described in the preceding
sentence will be entitled to contribute to the PLAN under
Article 4, will be entitled to share in COMPANY
contributions under Article 6, and the employer of such an
EMPLOYEE will be treated as the COMPANY for purposes of
Section 1.09 of the PLAN.
2. Section 4.01 of the Plan is hereby amended, effective April 1,
1996, by deleting the words "Eight percent (8%)" from the first
sentence of that section and replacing them with the words "Ten
percent (10%)".
3. Section 9.02 of the Plan is hereby amended, effective September 1,
1995, by adding the following subparagraph to that section,
immediately following subparagraph 9.02A.5:
6) Funeral expenses of the PARTICIPANT'S spouse,
parents, children or dependents.
4. In all other respects, the Plan is hereby ratified and approved.
Executed this 22nd day of December, 1995.
FORT HOWARD CORPORATION
PROFIT SHARING RETIREMENT PLAN
INVESTMENT ADVISORY BOARD
By: /s/R. Michael Lempke
---------------------------
Member of the Board
Exhibit 4.4
-----------
FORT HOWARD
PROFIT SHARING RETIREMENT MASTER TRUST
(Effective January 1, 1996)
TABLE OF CONTENTS
-----------------
ARTICLE I 3
Title-Purpose-Policy-Effect 3
Name 3
Definitions 3
Purpose 7
Fiduciary Responsibility
Effect 8
Domestic Trust 8
Trustee Not Responsible for Enforcing
Contributions or for Sufficiency 8
ARTICLE II 9
Valuation and Records 9
Valuations 9
Participant Records and Accounts 9
ARTICLE III 10
Administration of Plans 10
Payment of Benefits 10
Reliance on Investment Advisory Board 10
Trustee Not Responsible for Plan Administration 10
ARTICLE IV 11
Relating to the Investment Advisory Board 11
The Investment Advisory Board 11
Investment Advisory Board's General Powers,
Rights and Duties 12
Manner of Action of Investment Advisory Board 14
Resignation or Removal of Investment Advisory
Board 15
ARTICLE V 15
Investment of Trust Assets 15
Asset Managers 15
Investment Powers 17
Custodians 18
ARTICLE VI 20
Investment Funds Within the Trust Fund 20
Investment Funds 20
Commingling 21
ARTICLE VII 22
Responsibility for Directed Funds 22
Responsibility for Selection of Agents 22
Trustee Not Responsible for Investments in
Directed Funds 23
Investment Vehicles 23
Reliance on Asset Manager 24
Merger of Funds 25
Notification of Named Fiduciary in Event of
Breach 25
Certain Duties 26
Duty to Enforce Claims 26
Restrictions on Transfer 26
ARTICLE VIII 27
Powers of Asset Managers and Trustee 27
General Powers 27
Additional Powers of Trustee 30
Limitation of Powers 35
ARTICLE IX 36
Records and Accounts of Trustee 36
Records 36
Annual Account 36
Periodic Account 36
Account Stated 37
Judicial Accountings 37
Necessary Parties 37
Retention of Records 37
ARTICLE X 38
Compensation, Taxes and Expenses 38
Compensation and Expenses 38
Taxes 39
Allocation 39
Agents, Attorneys, Accountants, Etc. 40
ARTICLE XI 41
Resignation or Removal of Trustee 41
Resignation or Removal 41
Designation of a Successor 41
Duties of Resigning or Removed Trustee and of
Successor Trustee 41
Reserve for Expenses 42
ARTICLE XII 43
Amendment or Termination 43
Amendment 43
Termination 43
Trustee's Authority to Survive Termination 43
Approvals 43
ARTICLE XIII 44
Authorities 44
Corporation 44
Form of Communications 44
Continuation of Authority 45
No Obligation to Act on Unsatisfactory Notice 45
ARTICLE XIV 45
General Provisions 45
Governing Law 45
Entire Agreement 45
Mistake 46
Reliance on Experts 46
Notices 46
Plan Documents 47
No Waiver; Reservation of Rights 47
Descriptive Headings 47
Spendthrift Provision 47
Waiver of Notice 48
Gender and Number 48
Counterparts 48
Severability 48
Scope of this Agreement 48
No Reversion in Companies 48
ARTICLE XV 49
Liabilities 49
Liabilities Mutually Exclusive 49
Limitation of Liability 49
Indemnification 50
ARTICLE XVI 52
Plans and Agreement 52
Adoption of Agreement by Subsidiaries
and Affiliates 52
Segregation from Further Participation 53
Segregation of Assets Allocable to Specific
Employees 54
ARTICLE XVII 55
Merger or Consolidation 55
Merger or Consolidation of Trustee 55
Merger or Consolidation of Corporation 55
Merger or Consolidation of Plan 56
Exhibit A 59
Appendix A - Investment Funds 60
Agreement and Declaration of Trust (hereinafter referred to as
"Agreement") made as of the first day of January, 1996, by and between FORT
HOWARD CORPORATION, a Delaware corporation, and BANKERS TRUST COMPANY, a New
York banking corporation,
W I T N E S S E T H:
WHEREAS, Fort Howard Corporation and certain of its subsidiaries and
affiliates (hereinafter referred to singularly as a "Company" and collectively
as the "Companies") have adopted employee benefit plans and may in the future
adopt additional employee benefit plans meeting the requirements of Section
401(a) of the Internal Revenue Code of 1986, as amended, and validly existing
regulations thereunder (hereinafter referred to in their entirety as the
"Code"), for the benefit of the employees therein described; and
WHEREAS, Fort Howard Corporation and Bankers Trust Company
(hereinafter referred to as the "Trustee") wish to establish a master trust,
pursuant to which assets will be held to provide for the funding of and
payment of benefits under such plans; and
WHEREAS, Fort Howard Corporation wishes to provide for the
diversification of management of the assets of the master trust by providing
for the appointment of various investment managers to manage separate portions
of such assets; and
WHEREAS, the Companies adopting this Agreement and the Trustee wish
both to amend and restate the trust agreement known as the Fort Howard Profit
Sharing Retirement Trust between Fort Howard Corporation and Mellon Bank, N.A.
(hereinafter referred to as the "Prior Trust Agreement") so that this
Agreement shall be deemed to supersede such Prior Trust Agreement and also to
adopt this Agreement and the master trust created hereby as the trust
agreement and trust for those plans referred to in Exhibit A (in each case
with separate accounting for the interests of each plan having assets in the
master trust, as more completely described herein);
NOW, THEREFORE, IT IS AGREED, that this Agreement shall be the
superseding trust agreement to the Prior Trust Agreement adopted by Fort
Howard Corporation, and further, that this Agreement and master trust shall
also be the trust agreement and trust for those plans referred to in Exhibit A
to this Agreement and such additional employee benefit plans as may be
designated by the Corporation or authorized pursuant to Section 16.1 hereof
with the prior written consent of Bankers (such plans are hereinafter referred
to individually as the "Plan" and collectively as the "Plans"), provided that
this Agreement shall be adopted only with respect to employee benefit plans
meeting the requirements of Section 401(a) of the Code.
IT IS FURTHER AGREED as follows:
ARTICLE I
Title-Purpose-Policy-Effect
---------------------------
1.1. Name. The master trust established hereunder shall be known as
the Fort Howard Profit Sharing Retirement Master Trust and is sometimes
hereinafter referred to as the "Trust."
1.2. Definitions. Where used in this Agreement, unless the context
otherwise requires or unless otherwise expressly provided:
(a) "Account Party" shall mean the Person designated by the
Corporation to represent the Corporation for this purpose, the Named
Fiduciary and any Person to whom the Trustee shall be instructed by the
Named Fiduciary to deliver its annual or other periodic account under
Section 9.2 or Section 9.3, except, that with respect to any filings,
notices, reports or accountings required to be given under the General
Trust, "Account Party" shall be limited to that officer designated
herein to represent the Corporation.
(b) "Accounting Period" shall mean either the twelve consecutive
month period coincident with the calendar year or the shorter period in
any year in which the Trustee accepts appointment as Trustee hereunder
or ceases to act as Trustee for any reason.
(c) "Agreement" shall mean all of the provisions of this
instrument and of all other written instruments amendatory hereof.
(d) "Asset Manager" shall mean the Trustee (other than for
purposes of Article VII), Named Fiduciary or Investment Manager,
individually or collectively as the context shall require, with respect
to those assets held in any Investment Fund established hereunder over
which it exercises, or to the extent it is authorized to exercise,
discretionary investment authority or control.
(e) "Bank business day" shall mean a day on which the Trustee is
open for business.
(f) "Bankers" shall mean Bankers Trust Company.
(g) "Board of Directors" shall mean the board of directors of
the Corporation.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Regulations issued thereunder.
(i) "Corporation" shall mean Fort Howard Corporation or any
successor thereto.
(j) "Directed Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of the
Named Fiduciary or any Investment Manager, other than the Trustee.
(k) "Discretionary Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of the
Trustee.
(l) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
(m) "General Trust" shall mean the BT Pyramid Trust created by
Bankers Trust Company under Declaration of Trust effective June 30,
1991, as heretofore or hereafter amended.
(n) "Investment Advisory Board" shall mean the entity described
in Article IV hereof. The Investment Advisory Board is the entity
responsible for benefit administration under the Plans.
(o) "Insurance Contract" shall mean any contract or policy
(including any annuity contract) of any kind issued by an insurance
company, whether or not providing for the allocation of amounts received
by the insurance company thereunder solely to the general account or
solely to one or more separate accounts (including separate accounts
maintained for the collective investment of qualified retirement plans),
or a combination thereof, and whether or not any such allocation may be
made in the discretion of the insurance company.
(p) "Investment Fund" shall mean each pool of assets established
for investment purposes pursuant to Section 6.1 of the Trust. The term
shall also include for all purposes hereof any sub-fund or account into
which an Investment Fund shall be divided from time to time at the
direction of the Named Fiduciary.
(q) "Investment Manager" shall mean a bank, insurance company or
investment advisor satisfying the requirements of Section 3(38) of
ERISA.
(r) "Investment Vehicle" shall mean any common, collective or
commingled trust (other than the General Trust or an Investment Fund),
investment company, corporation functioning as an investment
intermediary, Insurance Contract, partnership, joint venture or other
entity or arrangement to which, or pursuant to which, assets of an
Investment Fund within the Trust may be transferred or in which the
Trust has an interest, beneficial or otherwise (whether or not the
underlying assets thereof are deemed to constitute "plan assets" for any
purpose under ERISA).
(s) "Named Fiduciary" shall mean the Person or its designee,
who, within the meaning of Section 402(a), 402(c)(3) or 403(a)(1) of
ERISA, has the authority to perform the separate functions allocated to
that "Named Fiduciary" under this Agreement. Unless otherwise
specifically provided to the contrary, the Named Fiduciary shall mean the
investment Advisory Board appointed pursuant to the Plans.
(t) "Plan" or "Plans" shall mean those employee benefit plans
referred to in Exhibit A.
(u) "Person" shall mean a natural person, trust, estate,
corporation of any kind or purpose, mutual company, joint-stock company,
unincorporated organization, association, partnership, joint venture,
employee organization, committee, board participant, beneficiary,
trustee, partner, or venturer acting in an individual, fiduciary or
representative capacity, as the context may require.
(v) "Section" shall mean any Section of this Agreement.
(w) "Trust Fund" shall mean all cash and other property
contributed, paid or delivered to the Trustee hereunder, all investments
made therewith and proceeds thereof and all earnings and profits thereon,
less payments, transfers or other distributions which, at the time of
reference, shall have been made by the Trustee, as authorized herein.
The Trust Fund shall include each Investment Fund and all evidences of
ownership, interest or participation in an Investment Vehicle, but shall
not, solely by reason of the Trust Fund's investment therein, be deemed
to include any assets of such Investment Vehicle.
(x) "Trustee" shall mean Bankers Trust Company, as Trustee of the
Trust.
(y) "Valuation Date" shall mean the last day of each month until
April 1, 1996, and thereafter shall mean each Bank business day.
1.3. Purpose. The Trust is established to fund the benefits payable to
participants and their beneficiaries under the Plans.
1.4. Fiduciary Responsibility. The Trustee, the Investment Advisory
Board, any Asset Manager appointed hereunder, and any other fiduciary under
the Plans or Trust shall discharge their respective duties thereunder solely
in the interest of participants and their beneficiaries, for the exclusive
purpose of providing their benefits and defraying reasonable expenses of Plan
and Trust administration, 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. No provision in the Plans or Trust is
intended to relieve a fiduciary from any duty or obligation imposed by
applicable law.
1.5. Effect. All Persons at any time interested in the Plans shall be
bound by the provisions of this Agreement and, in the event of any conflict
between this Agreement and the provisions of the Plans or any instrument or
agreement forming part of the Plans other than this Agreement, the provisions
of this Agreement shall control.
1.6. Domestic Trust. The Trust shall at all times be maintained as a
domestic trust in the United States.
1.7. Trustee Not Responsible for Enforcing Contributions or for
Sufficiency. The Trustee shall have no responsibility for enforcing payment
of any contribution to the Plans, for the timing or amount thereof, or for the
adequacy of the Trust Fund or the funding standards adopted for the Plans to
meet or discharge any pension or other liabilities of the Plans.
ARTICLE II
Valuation and Records
---------------------
2.1. Valuations. The Trustee shall determine the value of the assets
of the Trust Fund and each Investment Fund as of each Valuation Date. Except
in the case of an Investment Fund in which amortized cost is the valuation
method designated, assets will be valued at their market values at the close
of business on the Valuation Date, or, in the absence of readily ascertainable
market values, at such values as the Trustee shall determine in accordance
with methods consistently followed and uniformly applied. Anything in this
Agreement to the contrary notwithstanding, with respect to assets constituting
part of a Directed Fund, the Trustee may rely for all purposes of this
Agreement on the latest valuation and transaction information submitted to it
by the Person responsible for the investment of such assets even if such
information predates the Valuation Date. The Named Fiduciary will cause such
Person to provide the Trustee with all information needed by the Trustee to
discharge its obligations to value such assets and to account under this
Agreement.
2.2. Participant Records and Accounts. A description of the separate
records and accounts to be maintained by the Trustee with respect to each
participant in the Plans will be described in a separate recordkeeping
agreement.
ARTICLE III
Administration of Plans
-----------------------
3.1. Payment of Benefits. On the direction of the Investment Advisory
Board, the Trustee shall pay moneys out of the Plans directly to or for the
benefit of participants in the Plans and their beneficiaries, or to an
insurance company to provide for the payment of such benefits by the purchase
of an Insurance Contract, or to a paying or disbursing agent (which may be the
Investment Advisory Board). Any assets disbursed or paid over by the Trustee
pursuant to this Section 3.1 shall no longer be part of the Trust Fund.
3.2. Reliance on Investment Advisory Board. Any directions pursuant to
Section 3.1 may, but need not, specify the application to be made of moneys so
ordered. The Trustee shall charge such transfer against the Plans as the
Investment Advisory Board shall direct. The Trustee shall have no duty to
make any independent inquiry as to whether a payee or distributee is entitled
thereto or as to whether any such payment or distribution is proper, and the
Trustee shall not be liable for a payment or distribution made as directed by
the Investment Advisory Board. The Trustee shall notify the Investment
Advisory Board if a payment or distribution is returned to the Trustee.
3.3. Trustee Not Responsible for Plan Administration. The Trustee
shall not be held responsible for the form, terms or payment provisions of any
Insurance Contract which it is directed to purchase to provide for the payment
of benefits under the Plans, for performing any functions under any such
Insurance Contract which it may be directed to purchase and/or hold as
contract holder thereunder (other than the execution of any documents
incidental thereto and transfer or receipt of funds thereunder), or for any
other matter affecting the administration of the Plans, by the Corporation or
the Investment Advisory Board or any other Person to whom such responsibility
is allocated or delegated pursuant to the terms of the Plans.
ARTICLE IV
Relating to the Investment Advisory Board
-----------------------------------------
4.1. The Investment Advisory Board. The Chairman of the Board of the
Corporation shall appoint an Investment Advisory Board, which shall have the
powers, rights, duties and responsibilities described in Section 4.2 and
elsewhere in this Agreement; it being intended that the Investment Advisory
Board shall have the responsibility as to the investment and allocation of the
assets of this Trust Fund and any assets relating to the Plans. The Secretary
or Assistant Secretary of the Corporation shall certify to the Trustee each
appointment, resignation or removal of an Investment Advisory Board member and
the persons who are selected as chairman and secretary, respectively, of the
Investment Advisory Board. The Trustee may rely on the latest such
certificate received without further inquiry or verification. The Trustee
also may rely on an instrument signed by any member of the Investment Advisory
Board or any individual authorized to act on behalf of the Investment Advisory
Board as to any action or non-action by the Investment Advisory Board.
4.2. Investment Advisory Board's General Powers, Rights and Duties.
The Investment Advisory Board shall have the following powers, rights and
duties in connection with the investment of the Trust Fund in addition to
those vested in it elsewhere in this Agreement:
(a) To direct the Trustee from time to time to establish one or
more Investment Funds. At their discretion, and subject to the direction
of Plan participants to the extent provided under such Plans to specify
the investment of account balances, the Investment Advisory Board may
direct the Trustee to transfer assets from one Investment Fund to another
Investment Fund. The Investment Advisory Board may also direct the
Trustee to transfer assets held by the Trustee to a Custodian (as defined
in Section 5.3 hereof) of an Investment Fund and, if assets of an
Investment Fund are to be invested in an Insurance Contract, may direct
the Trustee to apply for such contract and to transfer assets to such
contract. The Investment Advisory Board may, in its discretion, direct
the Trustee to combine two or more Investment Funds for the purpose of
accounting for Plan assets.
(b) To direct the Trustee from time to time to effect
withdrawals from the Investment Funds and to distribute the proceeds.
(c) To appoint or remove Asset Managers pursuant to Section 5.1
and, at its discretion, to direct the Trustee to employ professional
investment advisors (any such advisor may be the bank acting as Trustee)
for the purpose of evaluation of the investment performance of any
Investment Fund or Funds on such terms and conditions as shall be
specified by the Investment Advisory Board.
(d) To direct the investment of one or more Investment Funds
upon notification to the Trustee that such investment shall be the
responsibility of the Investment Advisory Board and the Trustee shall
thereafter take direction for the investment of such Investment Fund(s)
from the Investment Advisory Board.
(e) To direct the Trustee to borrow amounts in accordance with
subparagraph 8.2(c) of this Agreement, and to direct the mortgage or
pledge of all or any part of the Trust Fund in connection with any such
borrowing, and to direct such other acts as specifically set forth in
Section 8.2.
(f) To determine, as Named Fiduciary, the diversification policy
(if required) of the Trust Fund, to monitor adherence by the Asset
Managers to such policy, and to advise the Asset Managers with respect to
limitations on employer or other securities or property contained in the
Plans or imposed on the Plans by applicable law or by it.
4.3. Manner of Action of Investment Advisory Board. During a period in
which two or more Investment Advisory Board members are acting, the following
provisions shall apply where the context admits:
(a) An Investment Advisory Board member, in writing, may
delegate any or all of his rights, powers, duties and discretions to any
other member, with the consent of the latter.
(b) The Investment Advisory Board members may act by meeting or
by writing signed without a meeting, and may sign any document by signing
one document or concurrent documents.
(c) An action or a decision of a majority of the members of the
Investment Advisory Board as to a matter shall be effective as if taken
or made by all members of the Investment Advisory Board.
(d) If, because of the number qualified to act, there is an even
division of opinion among the Investment Advisory Board members as to a
matter, a party selected by the Chairman of the Board of the Corporation
shall decide the matter and such party's decision shall control.
(e) Subject to applicable law, no member of the Investment
Advisory Board shall be liable or responsible for an act or omission of
the other Investment Advisory Board members in which the former has not
concurred, and the certificate of the chairman or secretary of the
Investment Advisory Board that the Investment Advisory Board has taken or
authorized any action shall be conclusive in favor of any person relying
on such certificate.
4.4. Resignation or Removal of Investment Advisory Board. A member of
the Investment Advisory Board may be removed by the Chairman of the Board of
the Corporation (or Company) at any time by written notice to him, and the
other members of the Investment Advisory Board. A member of the Investment
Advisory Board may resign at any time by giving prior written notice to the
Chairman of the Board of the Corporation and the other members of the
Investment Advisory Board. The Chairman of the Board of the Corporation may
fill any vacancy in the membership of the Investment Advisory Board. The
Chairman of the Board of the Corporation shall give prompt written notice
thereof to the successor Investment Advisory Board member. The Secretary or
Assistant Secretary of the Corporation shall give prompt written notice to the
Trustee of such removal or resignation. Until any such vacancy is filled, the
remaining members may exercise all of the powers, rights and duties conferred
on the Investment Advisory Board.
ARTICLE V
Investment of Trust Assets
--------------------------
5.1. Asset Managers. The Investment Advisory Board, as the Named
Fiduciary, at its sole discretion, may appoint a professional investment
manager as Asset Manager of all or any portion of any Investment Fund
established pursuant to the direction of the Investment Advisory Board. More
than one Asset Manager may be appointed for any single Investment Fund.
Appointment of an Asset Manager shall be made by written notice to the Asset
Manager and the Trustee, which notice shall specify that portion of the assets
of the Trust Fund subject to investment direction by that Asset Manager. An
Asset Manager so appointed pursuant to this paragraph shall be a registered
investment adviser under the Investment Advisers Act of 1940, or a bank
defined in said Act, or a legal reserve life insurance company qualified to
manage, acquire or dispose of assets of the Trust Fund under the laws of more
than one state, and shall acknowledge in writing to the Investment Advisory
Board and the Trustee that it accepts such appointment and is a fiduciary (as
defined in Section 3(21) of ERISA) with respect to this Trust Fund and the
related Plans insofar as the management and control of investments of the
Investment Fund and Plans are concerned. The Investment Advisory Board shall
promptly notify the Trustee in writing of such appointment and thereafter the
Trustee shall be subject to the direction of the Asset Manager as respects the
investment, retention or sale of the assets of the applicable Investment Fund,
including the receipt and delivery of assets purchased or sold by the Asset
Manager. The Trustee may assume that such appointment continues in effect
until it receives written notice to the contrary from the Investment Advisory
Board or such Asset Manager. An Asset Manager may resign at any time upon
prior written notice to the Investment Advisory Board and the Trustee. The
Investment Advisory Board may remove an Asset Manager at any time by prior
written notice to the Asset Manager and the Trustee. Subject to applicable
law, it is intended that an Asset Manager shall have full responsibility with
respect to the assets of the Investment Fund for which it has the power of
investment direction and that the Asset Manager shall have the powers, rights
and duties set forth in Section 8.1, and that the Trustee shall have no
obligation as to the investment of such assets as long as they are subject to
investment direction by that Asset Manager. Notwithstanding the foregoing,
with the prior approval of an Asset Manager, the Trustee shall have the power,
right and duty to invest cash balances held by it from time to time as a part
of an Investment Fund in short-term cash equivalents having ready
marketability, including, but not limited to, United States treasury bills,
commercial paper, certificates of deposits and similar types of securities,
and including investment in any appropriate common, commingled or collective
short-term investment fund maintained by Bankers as trustee, and the Trustee
also shall have the power, right and duty to sell such short-term investments
as may be necessary to carry out the instructions of the Asset Manager or the
Investment Advisory Board regarding that Investment Fund.
5.2. Investment Powers. Anything herein notwithstanding, the Trust
Fund shall be invested in such Investment Funds as the Investment Advisory
Board shall direct the Trustee in writing to establish. The Investment
Advisory Board shall direct the Trustee with respect to the allocation of
assets among the Investment Funds and shall adopt the investment policy to be
followed in investing the Investment Funds. Pending directions from the
Investment Advisory Board with respect to the allocation of contributions
among the Investment Funds, the Trustee shall hold the contributions for each
Plan in an account invested in short-term investments which may include
investment in its collective short-term investment fund. Cash held for a Plan
or in an Investment Fund pending investment or distribution shall be invested
in short-term investments which may include the collective short-term
investment fund of Bankers.
5.3. Custodians. If the Investment Advisory Board appoints a national
banking association or bank incorporated under state law (other than the
Trustee) as Asset Manager of any Investment Fund (the "Fund"), then,
notwithstanding any other provisions of this Agreement, the Investment
Advisory Board may, with the consent of the Trustee, also designate such bank
to be employed by the Trustee as "Custodian" of the assets from time to time
forming a part of that Fund, in which event the following shall apply:
(a) The Trustee shall enter into an agreement with the bank so
named employing it as agent of the Trustee and Custodian of that Fund and
delegating to the Custodian the same powers, rights and duties otherwise
reserved to the Trustee under this Agreement in regard to the retention
and administration of that Fund, it being intended that, except as
provided to the contrary in this Section, the conditions and limitations
of this Agreement otherwise applicable to the Trustee shall be applicable
to the Custodian, but only with respect to that Fund, and the Custodian
shall have responsibility for the holding and safekeeping of the assets
of that Fund, in addition to its duties as Asset Manager, and shall
maintain the records and accounts, and shall submit to the appropriate
party or parties the periodic reports, otherwise required of the Trustee
as to that Fund.
(b) The provisions of such agreement shall include the right
reserved to the Custodian to resign as such at any time by giving prior
written notice to the Investment Advisory Board and the Trustee and the
right reserved to the Trustee to terminate the employment of the
Custodian at any time by giving prior written notice to the Custodian and
the Investment Advisory Board.
(c) The Custodian shall be entitled to reasonable compensation
for its duties as such as may be agreed upon from time to time between
the Custodian and the Investment Advisory Board, which compensation may
be included in and paid pursuant to the Custodian's compensation
arrangement with the Investment Advisory Board for services rendered by
it as Asset Manager.
(d) The Trustee shall promptly transfer to the Custodian the
assets of that Fund and, until its employment as Custodian ends and all
assets held by it as to that Fund have been returned to the possession of
the Trustee, the Custodian shall hold and be responsible for the
retention and administration of the assets of that Fund as agent of the
Trustee.
If the Investment Advisory Board designates a legal reserve life insurance
company as Asset Manager of any Investment Fund pursuant to Section 5.1, then,
notwithstanding any other provisions of this Agreement, the Investment
Advisory Board shall direct the Trustee to execute an Insurance Contract with
the insurance company providing for the investment of the assets of that
Investment Fund by the insurance company and for purposes of this Agreement
the insurance company shall be deemed to be the Custodian of the assets which
are transferred from time to time to the insurance company as a part of the
Investment Fund.
ARTICLE VI
Investment Funds Within the Trust Fund
--------------------------------------
6.1. Investment Funds. Concurrent with the establishment of this
Trust, and from time to time thereafter, the Investment Advisory Board shall
direct the Trustee to establish and maintain one or more Investment Funds for
the purpose of investing the deposits of the Plans. As of the date hereof,
the Trust Fund shall be held and invested in the Investment Funds listed and
described in Appendix A attached hereto. The investment of the assets of each
Investment Fund or part thereof that is a Discretionary Fund shall be the
responsibility of the Trustee unless otherwise directed by the Investment
Advisory Board as provided in Section 4.2; the investment of the assets of
each Investment Fund or part thereof that is a Directed Fund shall be the
responsibility of the Asset Manager appointed pursuant to Section 5.1.
Investment of the assets of an Investment Fund shall be made pursuant to
investment guidelines promulgated by the Investment Advisory Board for that
Investment Fund, which guidelines shall be furnished in writing by the
Investment Advisory Board to the Trustee and the Asset Manager appointed for
that Investment Fund. The investment guidelines for any Investment Fund may
be modified by the Investment Advisory Board from time to time but such
revised guidelines shall be promptly furnished in writing to the Trustee and
the Asset Manager, if any, for that Investment Fund. The Trustee shall have
no authority or obligation to invest or reinvest cash balances of any Directed
Fund in the General Trust or otherwise pursuant to this Agreement unless and
until it receives appropriate directions from the Asset Manager. The Trustee
also shall have no responsibility with respect to the formulation of any
funding policy or any investment or diversification policies embodied therein.
Any investment limitation affecting employer securities shall not be
applicable to the extent any Investment Fund is invested in units of the
General Trust.
6.2. Commingling. The Trustee may commingle the assets attributable to
the Plans for which contributions are made under this Agreement if this
Agreement is applicable to more than one Plan, and may commingle the Trust
Fund with funds of other trusts of similar nature created by the Companies for
the exclusive benefit of their employees. The Trustee shall maintain such
records as are necessary in order to maintain a separation of the Trust Fund
from the funds of the other trusts maintained by the Companies and to separate
the assets attributable to each of the Plans for which contributions are made
under this Agreement. The Companies shall be responsible for causing
sufficient records to be maintained to ensure that benefits and liabilities
payable with respect to each Plan shall be paid from the assets allocable to
each such Plan. Should separation be required, either of the Trust Fund from
other trusts maintained by the Companies or of any Plan for which
contributions are made under this Agreement from the Trust Fund, the Trustee
shall make such separation in accordance with generally accepted accounting
principles and, where applicable, upon the certification of an enrolled
actuary.
ARTICLE VII
Responsibility for Directed Funds
---------------------------------
7.1. Responsibility for Selection of Agents. All transactions of any
kind or nature in or from a Directed Fund shall be made upon such terms and
conditions and from or through such brokers, dealers and principals and other
agents as the Asset Manager shall direct. No such transactions shall be
executed through the facilities of the Trustee except where the Trustee shall
make available its facilities solely for the purpose of temporary investment
of cash reserves of a Directed Fund. However, nothing in the preceding
sentence shall confer any authority upon the Trustee to invest the cash
balances of any Directed Fund unless and until it receives directions from the
Asset Manager.
7.2. Trustee Not Responsible for Investments in Directed Funds. The
Trustee shall be under no duty or obligation to review or to question any
direction of any Asset Manager, or to review securities or any other property
held in any Directed Fund with respect to prudence or proper diversification
or compliance with any limitation on the Asset Manager's authority under this
Agreement or the terms of the Plans, any agreement entered into between the
Corporation or the Investment Advisory Board and the Asset Manager or imposed
by applicable law, or to make any suggestions or recommendation to the
Corporation, the Investment Advisory Board or the Asset Manager with respect
to the retention or investment of any assets of any Directed Fund, and shall
have no authority to take any action or to refrain from taking any action with
respect to any asset of a Directed Fund unless and until it is directed to do
so by the Asset Manager.
7.3. Investment Vehicles. Any Investment Vehicle, or interest therein,
acquired by or transferred to the Trustee upon the directions of the Asset
Manager shall be allocated to a designated Directed Fund, and the Trustee's
duties and responsibilities under this Agreement shall not be increased or
otherwise affected thereby. The Trustee shall be responsible solely for the
safekeeping of the physical evidence, if any, of the Trust's ownership of or
interest or participation in such Investment Vehicle.
7.4. Reliance on Asset Manager. The Trustee shall be required under
this Agreement to execute documents, to settle transactions, to take action on
behalf of or in the name of the Trust and to make and receive payments on the
direction of an Asset Manager. Any direction of an Asset Manager shall
constitute a representation to the Trustee (i) that any agreement, deed,
assignment or other document which the Trustee is requested or required to
execute to effectuate a transaction has been reviewed by the Asset Manager,
(ii) that such instrument or document is in proper form for execution by the
Trustee, and (iii) that, where appropriate, insurance protecting the Trust
against loss or liability has been or will be maintained in the name of or for
the benefit of the Trustee. The Trustee shall have no duty to make any
independent inquiry or investigation as to any direction before acting upon
such direction. In addition, the Trustee shall not be liable for the default
of any Person with respect to any Investment Vehicle or any investment in a
Directed Fund or for the form, genuineness, validity, sufficiency or effect of
any document executed by, delivered to or held by it for any Directed Fund on
account of such investment, or if, for any reason (other than the negligence
or willful misconduct of the Trustee) any rights of the Trust therein shall
lapse or shall become unenforceable or worthless.
7.5. Merger of Funds. The Trustee shall not have any discretionary
responsibility or authority to manage or control any asset held in a Directed
Fund upon the resignation or removal of an Asset Manager unless and until it
has been notified in writing by the Named Fiduciary that the Asset Manager's
authority has terminated and that such Directed Fund's assets are to be
integrated with the Discretionary Fund. Such notice shall not be deemed
effective until two bank business days after it has been received by the
Trustee. The Trustee shall not be liable for any losses to the Trust Fund
resulting from the disposition of any investment made by the Asset Manager or
for the retention of any illiquid or unmarketable investment or any investment
which is not widely publicly traded or for the holding of any other investment
acquired by the Asset Manager if the Trustee is unable to dispose of such
investment because of any restrictions imposed by the Securities Act of 1933
or other Federal or state law, or if an orderly liquidation of such investment
is impractical under prevailing conditions, or for failure to comply with any
investment limitations imposed pursuant to Section 6.1, or for any other
violation of the terms of this Agreement, the Plans or applicable law as a
result of the addition of Directed Fund assets to the Discretionary Fund.
7.6. Notification of Named Fiduciary in Event of Breach. If the
Trustee has knowledge of a breach committed by an Asset Manager, it shall
notify the Investment Advisory Board thereof, and, to the extent permitted by
applicable law, the Investment Advisory Board and the Asset Manager shall
thereafter assume full responsibility to all Persons interested in the Plan to
remedy such breach.
7.7. Certain Duties. The parties hereto acknowledge that while the
Trustee will perform certain duties (such as custodial, reporting, recording,
valuation and bookkeeping functions) with respect to Directed Funds, such
duties will not involve the exercise of any discretionary authority to manage
or control the assets of the Directed Funds and will be the responsibility of
officers or other employees of the Trustee who are unfamiliar with and have no
responsibility for investment management.
7.8. Duty to Enforce Claims. The Trustee shall have no duty to
commence or maintain any action, suit or legal proceeding on behalf of the
Trust on account of or growing out of an investment made in or for a Directed
Fund unless the Trustee has been directed to do so by the Asset Manager or the
Investment Advisory Board and unless the Trustee is either in possession of
funds sufficient for such purpose or has been indemnified to its satisfaction
for counsel fees, costs and other expenses and liabilities to which it, in it
sole judgment, may be subjected by beginning or maintaining such action, suit
or legal proceeding.
7.9. Restrictions on Transfer. Nothing herein shall be deemed to
empower any Asset Manager to direct the Trustee to transfer any asset of a
Directed Fund to itself except for purposes enumerated in paragraphs (j), (l)
or (m) of Section 8.1.
ARTICLE VIII
Powers of Asset Managers and Trustee
------------------------------------
8.1. General Powers. Without limiting the powers and discretions
conferred upon the Trustee or the Asset Managers by the other provisions of
this Agreement, the Asset Managers and the Trustee shall have the following
powers, rights and duties with respect to the assets of the Investment Fund
subject to their management and control, and, upon the directions of an Asset
Manager of a Directed Fund, the Trustee shall make, execute, acknowledge and
deliver any and all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to enable the Asset Managers
to carry out such powers:
(a) to manage, sell, contract to sell, grant options to
purchase, convey, exchange, transfer, abandon, improve, repair, insure,
lease for any term (even though commencing in the future or extending
beyond the term of the trust) and otherwise deal with all property, real
or personal, in such manner, for such considerations, and on such terms
and conditions as the Trustee or Asset Manager, as the case may be, shall
decide, and no person dealing with the Trustee or Asset Manager shall be
bound to see to the application of the purchase money or to inquire into
the validity, expediency or propriety of any such sale or other
disposition;
(b) to temporarily retain in cash so much of the Trust Fund as
it deems advisable;
(c) to invest in any shares of stock, bonds, mortgages, notes,
or other property of any kind, real or personal, and, with the consent of
the Investment Advisory Board, to purchase or sell, write or issue, puts,
calls or other options, covered or uncovered, to enter into financial
futures contracts, forward placement contracts and standby contracts, and
in connection therewith, to deposit, hold (or direct Bankers, as Trustee
or in its individual capacity, to deposit or hold) or pledge assets of
the Trust Fund;
(d) to purchase part interests in real property or in mortgages
on real property, wherever such real property may be situated;
(e) to lease to others for any term without regard to the
duration of the Trust any real property or part interest in real
property;
(f) to delegate to a manager or the holder or holders of a
majority interest in any real property or mortgage on real property or in
any oil, mineral or gas properties, the management and operation of any
part interest in such property or properties (including the authority to
sell such part interests or otherwise carry out the decisions of such
manager or the holder or holders of such majority interest);
(g) to vote upon any stocks, bond, or other securities (but
subject to the suspension of any voting rights as a result of any broker
loan or similar agreement); to give general or special proxies or powers
of attorney with or without power of substitution; to exercise any
conversion privileges, subscription rights or other options and to make
any payments incidental thereto; to consent to or otherwise participate
in corporate reorganizations or other changes affecting corporate
securities and to delegate discretionary powers and to pay any
assessments or charges in connection therewith; and generally to exercise
any of the powers of an owner with respect to stocks, bonds, securities
or other property;
(h) to organize corporations under the laws of any state for the
purpose of acquiring or holding title to property (or, in the case of a
Directed Fund, to direct the Trustee to organize such corporations or to
appoint an ancillary trustee acceptable to the Trustee for such purpose);
(i) to invest in a fund consisting of securities issued by
corporations and selected and retained solely because of their inclusion
in, and in accordance with, one or more commonly used indices of such
securities, with the objective of providing investment results for the
fund which approximate the overall performance of such designated index;
(j) to enter into any partnership, as a general or limited
partner, or joint venture;
(k) to purchase units or certificates issued by an investment
company or pooled trust or comparable entity;
(l) to transfer money or other property to an insurance company
issuing an Insurance Contract;
(m) as authorized by the Investment Advisory Board, to transfer
assets of a Discretionary or Directed Fund to a common, collective or
commingled trust fund exempt from tax under the Code, to be held and
invested subject to all of the terms and conditions thereof, and such
trust shall be deemed adopted as part of the Trust and the Plans to the
extent that assets of the Trust are invested therein; provided, however,
that any transfer from a Directed Fund to the General Trust may be made
only with the prior approval of the Trustee and shall be invested only in
one or more short-term investment funds or other special purpose funds
established from time to time thereunder; and
(n) to be reimbursed for the expenses incurred in exercising any
of the foregoing powers and to pay the reasonable expenses incurred by
any agent, manager or trustee appointed pursuant hereto.
8.2. Additional Powers of Trustee. In addition, the Trustee is hereby
authorized:
(a) to register any securities held in the Trust Fund in its own
name or in the name of a nominee and to hold any securities in bearer
form, and to combine certificates representing such securities with
certificates of the same issue held by the Trustee in other fiduciary or
representative capacities or as agent for customers, or to deposit or to
arrange for the deposit of such securities in any qualified central
depository even though, when so deposited, such securities may be merged
and held in bulk in the name of the nominee of such depository with other
securities deposited therein by other depositors, or to deposit or
arrange for the deposit of any securities issued by the United States
Government, or any agency or instrumentality thereof, with a Federal
Reserve Bank, but the books and records of the Trustee shall at all times
show that all such investments are part of the Trust Fund;
(b) to employ suitable agents, depositories and counsel,
domestic or foreign, and to charge their reasonable expenses and
compensation against the Trust Fund, and to confer upon any such
depository the powers conferred upon the Trustee by paragraph (a) of this
Section 8.2 as well as the power to appoint subagents and depositories,
wherever situated, in connection with the retention of securities or
other property;
(c) at the direction of the Investment Advisory Board, to borrow
money from any source as may be necessary or advisable to effectuate the
purposes of the Trust on such terms and conditions as the Trustee, in its
absolute discretion, may deem advisable;
(d) as directed by the Investment Advisory Board, to deposit any
funds of the Trust in accounts deposits or savings certificates, which
bear a reasonable rate of interest, issued and maintained by Bankers
Trust Company, in its separate corporate capacity, or in any other
institution affiliated with Bankers Trust Company;
(e) to compromise, compound, submit to arbitration or settle any
debt or obligation owing to or from or otherwise adjust all claims in
favor of or against the Trust Fund other than claims solely affecting the
right of any Person to benefits under the Plans; to reduce or increase
the rate of interest or extend, or otherwise modify, foreclose upon
default, or enforce any such debt or obligation; at the direction of the
Investment Advisory Board, to sue or defend suits or legal proceedings to
protect any interest in the Trust and to represent the Trust in all suits
or legal proceedings in any court or before any other administrative
agency, body or tribunal;
(f) to make any distribution or transfer of assets as of a
Valuation Date or to effectuate participants' rights under the Plans in
cash, and, in furtherance thereof, to value such assets, which valuation
shall be conclusive and binding on all Persons;
(g) upon the direction of the Investment Advisory Board, to
maintain and operate one or more market inventory funds as a vehicle to
exchange securities among Discretionary and Directed Funds without
alienating the property from the Trust;
(h) with the consent of the Investment Advisory Board, to loan
securities held in the Trust Fund to brokers or dealers or other
borrowers under such terms and conditions as the Trustee, in its absolute
discretion, deems advisable, to secure the same in any manner permitted
by law and the provisions of this Agreement, and during the term of any
such loan, to permit the loaned securities to be transferred into the
name of and voted by the borrowers or others, and, in connection with the
exercise of the powers hereinabove granted, to hold any property
deposited as collateral by the borrower pursuant to any master loan
agreement in bulk, either as provided in paragraph (a) of this Section
8.2 or otherwise, together with the unallocated interests of other
lenders, and to retain any such property upon the default of the
borrower, whether or not investment in such property is authorized under
this Agreement, and to receive compensation therefor out of any amounts
paid by or charged to the account of the borrower;
(i) to hold uninvested cash awaiting investment and such
additional cash balances as it shall deem reasonable or necessary,
without incurring any liability for the payment of interest thereon;
(j) to furnish the Investment Advisory Board with such
information in the Trustee's possession as the Investment Advisory Board
may reasonably need for tax or other purposes;
(k) at the direction of the Investment Advisory Board, to
receive, hold and invest any funds or other property transferred to the
Trustee from:
(i) any other trust forming a part of a plan meeting the
requirements of Section 401(a) of the Code;
(ii) an employee of a Company if such funds or property
qualify as a rollover described in Section 402(c) of
the Code; or
(iii) an individual retirement account or individual
retirement annuity maintained by an employee of a
Company, if such funds or property qualify as a
rollover contribution described in Section 408(d)(3)
of the Code;
and to allocate, credit and distribute any such funds and other property
so transferred in accordance with the direction of the Investment
Advisory Board;
(l) to transfer all or any portion of the Trust Fund to another
trust or trusts forming a part of a plan or plans that meet the
requirements of Section 401(a) of the Code, as directed by the Investment
Advisory Board;
(m) to transfer an eligible rollover distribution described in
Section 402(c)(4) of the Code directly to an eligible retirement plan
described in Section 402(c)(8)(B) of the Code, as directed by the
Investment Advisory Board; and
(n) generally, consistent with the provisions of this Agreement
to perform all acts (whether or not expressly authorized herein) which it
may deem necessary and prudent for the protection of the assets of the
Trust.
8.3. Limitation of Powers. The foregoing provisions of this Article
VIII shall not be deemed to expand the permissible investments for any
Investment Fund under Section 6.1 or to limit the Investment Advisory Board's
power to restrict the exercise of the powers of an Asset Manager as provided
in this Agreement. In addition, any powers conferred on the Trustee or any
other Asset Manager hereunder may be suspended or revoked at any time by the
Investment Advisory Board upon notice to the Asset Manager or the Trustee, as
the case may be. Any oral notice hereunder shall be promptly confirmed in
writing to the Trustee and the Asset Manager, but the Trustee shall have no
responsibility hereunder unless and until it has received notice in accordance
with Section 14.5.
ARTICLE IX
Records and Accounts of Trustee
-------------------------------
9.1. Records. The Trustee shall keep accurate and detailed accounts of
all investments, receipts, disbursements and other transactions in the Trust
Fund and all accounts, books and records relating thereto shall be open to
inspection and audit at all reasonable times during normal business hours by
any Person designated by the Named Fiduciary.
9.2. Annual Account. Within ninety (90) days following the close of
each Accounting Period, the Trustee shall file with the Account Party, in
accordance with Section 14.5, a written account setting forth the receipts and
disbursements of the Trust Fund and the investments and other transactions
effected by it upon its own authority or pursuant to the directions of any
Person as herein provided during the Accounting Period.
9.3. Periodic Account. If so required by the terms of the Plans and
agreed to by the Trustee, within thirty (30) days following the close of each
calendar month, calendar quarter or other time period (but not more frequently
than monthly) the Trustee shall provide the Account Party with, in accordance
with Section 14.5, a written account for the Plans, setting forth the receipts
and disbursements of the Trust Fund (and each of the Plans thereunder) and the
investments and other transactions effected by it upon its own authority or
pursuant to the directions of any Person as herein provided during such
period; provided, however, that such written account shall be limited to an
accounting of investments and transactions in the Trust Fund (and each of the
Plans thereunder) and shall not affect the responsibilities of the parties
under Section 2.2 herein.
9.4. Account Stated. Upon the expiration of one hundred twenty (120)
days from the date of filing its annual account with the Account Party, the
Trustee shall be forever released and discharged from all liability and
further accountability to the Companies, the Account Party or any other Person
with respect to the accuracy of such accounting and the propriety of all acts
and failures to act of the Trustee reflected in such account, except with
respect to any such acts or transactions as to which the Account Party shall,
within such 120-day period, file with the Trustee specific written objections.
9.5. Judicial Accountings. Nothing herein shall in any way limit the
Trustee's right to bring any action or proceeding in a court of competent
jurisdiction to settle its account or for such other relief as it may deem
appropriate.
9.6. Necessary Parties. Except to the extent that Sections 502 and 504
of ERISA may provide otherwise, in order to protect the Trust Fund from the
expense of litigation, no Person other than the Corporation shall be a
necessary party in any proceeding under Section 9.5 or may require the Trustee
to account or may institute any other action or proceeding against the Trustee
or the Trust.
9.7. Retention of Records. All records and accounts maintained by the
Trustee with respect to the Trust Fund shall be preserved for a period of
seven years. Upon the expiration of any such required retention period, the
Trustee shall have the right to destroy such records and accounts after first
transferring to the Corporation any records and accounts requested. The
Trustee shall have the right to preserve all records and accounts in original
form, or on any microfilm, magnetic tape, or other similar process allowable
under law to be admissible into evidence.
ARTICLE X
Compensation, Taxes and Expenses
--------------------------------
10.1. Compensation and Expenses. A reasonable compensation as may be
agreed upon from time to time between the Corporation and the Trustee and
between the Investment Advisory Board and any Asset Manager, Custodian or
insurance company, and all costs, disbursements, charges and expenses (except
those specifically described in the next sentence) reasonably incurred by the
Trustee and the members of the Investment Advisory Board in the administration
of this Trust Fund, including any compensation to, and expenses of, agents,
attorneys, accountants and other persons employed by the Trustee or the
Investment Advisory Board, as certified by the Trustee or a majority of the
members of the Investment Advisory Board, will be paid from the Trust Fund,
but only to the extent they are not paid by the Companies in such proportions
as the Investment Advisory Board shall direct. Expenses solely attributable
to the investment of the assets of an Investment Fund (such as brokerage,
postage, express, or insurance charges and stock transfer stamps expense),
other than compensation payable directly by the Companies or the Trust Fund,
shall be paid from that Investment Fund. The Trustee's entitlement to
reimbursement thereunder shall not be affected by the resignation or removal
of the Trustee or by the termination of the Trust. Unless prohibited by law,
and at the discretion of the Corporation, compensation may be paid by the
Companies to any member or members of the Investment Advisory Board for
services rendered as such.
10.2. Taxes. All taxes of any and all kinds whatsoever that may be
levied or assessed under existing or future laws, domestic or foreign, upon
the Trust Fund or the income thereof shall be paid from the Trust Fund.
The Trustee shall notify the Named Fiduciary of any taxes that may be
assessed. In the event that the Named Fiduciary shall determine that the
taxes are not lawfully assessed, it may elect to direct the Trustee at the
expense of the Trust, or may itself, contest such assessment.
10.3. Allocation. Any tax or expense paid from the Trust Fund hereunder
which is determined by the Named Fiduciary to be specifically allocable to one
or more Investment Funds shall be charged against such Investment Fund in such
proportions as the Named Fiduciary shall direct the Trustee. Any expense
which is allocable to all of the Investment Funds shall be charged against the
Trust Fund as a whole.
10.4. Agents, Attorneys, Accountants, Etc.. The Investment Advisory
Board and the Trustee, individually, may employ such agents, attorneys,
accountants, and other persons (who may be employed by the Corporation) as in
its opinion may be necessary or desirable for the proper administration of the
Plan(s) and this Trust Fund and to advise the Investment Advisory Board or the
Trustee, as the case may be, and pay them a reasonable compensation. The
Investment Advisory Board may delegate in writing to any agent, attorney,
accountant, or other person selected by them, and the Trustee, by writing and
with the approval of the Investment Advisory Board in any case in which the
Trustee is not specifically authorized elsewhere in this Agreement or the
Plans to do so, may delegate to any agent, attorney, accountant, or other
person selected by it, any specifically described power or duty (except the
Trustee may not delegate powers of management or control over Trust assets)
vested in, imposed upon, or granted to it by this Agreement or the Plans, as
the case may be; and the Investment Advisory Board and the Trustee may act or
refrain from acting on the advice or opinion of reputable agents, attorneys,
accountants, or other persons selected as above with reasonable diligence,
without liability for so doing and without court action, except as otherwise
provided by applicable law. The Investment Advisory Board and the Trustee
shall give notice to the other of any delegation made pursuant to this
Section.
ARTICLE XI
Resignation or Removal of Trustee
---------------------------------
11.1. Resignation or Removal. The Trustee may be removed by the
Corporation at any time upon sixty (60) days' notice in writing to the
Trustee. The Trustee may resign at any time upon sixty (60) days' notice in
writing to the Corporation.
11.2. Designation of a Successor. Upon the removal or resignation of
the Trustee, the Corporation shall either appoint a successor trustee who
shall have the same powers and duties as those conferred upon the Trustee
hereunder, and upon acceptance of such appointment by the successor trustee,
the Trustee shall assign, transfer and pay over the Trust Fund to such
successor trustee, or the Corporation shall direct the Trustee to assign,
transfer and pay over the Trust Fund to one or more insurance companies
pursuant to Insurance Contracts issued to the Plans. If, for any reason, the
Corporation cannot or does not act promptly to appoint a successor trustee or
designate an insurance company in the event of the resignation or removal of
the Trustee, the Trustee may apply to a court of competent jurisdiction for
the appointment of a successor trustee. Any expenses incurred by the Trustee
in connection therewith shall be charged to and paid from the Trust Fund as an
expense of administration.
11.3. Duties of Resigning or Removed Trustee and of Successor Trustee.
A trustee that resigns or is removed shall promptly furnish to the Investment
Advisory Board and the successor trustee an account of its administration of
the Trust from the date of its last account. Each successor trustee shall
succeed to the title to the Trust Fund vested in its predecessor without the
signing or filing of any further instrument, but each resigning or removed
trustee shall execute all documents and do all acts necessary to vest such
title of record in the successor trustee. Each successor trustee shall have
and enjoy all of the powers conferred by this Agreement as if originally named
trustee. Subject to applicable law, no successor trustee shall be personally
liable for any act or failure to act of any predecessor trustee and with the
approval of the Investment Advisory Board a successor trustee may accept the
account rendered and the property delivered to it by a predecessor trustee as
a full and complete discharge to the predecessor trustee without incurring any
liability or responsibility for so doing.
11.4. Reserve for Expenses. The Trustee may reserve such amount as it
may, in good faith, deem necessary for payment of its fees and expenses in
connection with the settlement of its account or otherwise, and any balance of
such reserve remaining after the payment of such fees and expenses shall be
paid over in accordance with the directions of the Corporation under Section
11.2. The Trustee is authorized to invest such reserves in any investment
authorized under the terms of this Agreement appropriate for the temporary
investment of cash reserves of trusts.
ARTICLE XII
Amendment or Termination
------------------------
12.1. Amendment. Subject to Section 1.4, the Corporation reserves the
right at any time and from time to time to amend, in whole or in part, any or
all of the provisions of this Agreement by notice thereof in writing delivered
to the Trustee; provided, however, no amendment which affects the rights,
duties or responsibilities of the Trustee may be made without its prior
written consent.
12.2. Termination. Subject to Section 1.4, the Corporation reserves the
right to terminate this Agreement by notice in writing thereof delivered to
the Trustee. In the event of termination, the Trustee shall dispose of the
Trust Fund, after the payment of, or other provision for, all of its expenses
(including any compensation to which the Trustee may be entitled), all in
accordance with the written directions of the Corporation.
12.3. Trustee's Authority to Survive Termination. Until the final
distribution of the Trust Fund, the Trustee shall continue to have and may
exercise all of the powers and discretions conferred upon it by this
Agreement.
12.4. Approvals. In the event that this Trust Fund does not form a part
of a plan subject to the jurisdiction of the Pension Benefit Guaranty
Corporation, the Trustee shall distribute all cash, securities and other
property then constituting the Trust Fund, less any amounts constituting
charges and expenses payable from the Trust Fund, on the date or dates
specified by the Investment Advisory Board to such persons and in such manner
as the Investment Advisory Board shall direct. In making such distributions,
the Trustee shall be entitled to assume that such distributions are in full
compliance with and are not in violation of any applicable law regulating the
termination of retirement plans such as the Plans.
ARTICLE XIII
Authorities
-----------
13.1. Corporation. Whenever the provisions of this Agreement
specifically require or permit any action to be taken by the Corporation, such
action must be by resolution of its Board of Directors or by a person
authorized by resolution of its Board of Directors.
13.2. Form of Communications. Any agreement or understanding between
the Corporation and any Person (including an Asset Manager) or any other
provision of this Agreement to the contrary notwithstanding, all notices,
directions and other communications to the Trustee shall be in writing or in
such other form, including transmission by electronic means through the
facilities of third parties or otherwise, specifically agreed to in writing by
the Trustee. The Trustee shall be fully protected in acting in accordance
therewith, but shall not thereby assume responsibility for the failure or
breakdown of any such means of communication not due to its own negligence or
willful misconduct.
13.3. Continuation of Authority. The Trustee shall have the right to
assume, in the absence of written notice to the contrary, that no event
constituting a change in the composition or authority of the Named Fiduciary
or membership of the Investment Advisory Board or terminating the authority of
any Person, including any Asset Manager, has occurred.
13.4. No Obligation to Act on Unsatisfactory Notice. The Trustee shall
incur no liability under this Agreement for any failure to act pursuant to any
notice, direction or any other communication from any Asset Manager, the
Corporation, the Named Fiduciary, the Investment Advisory Board, or any other
Person or the designee of any of them unless and until it shall have received
instructions in a form specified in this Agreement.
ARTICLE XIV
General Provisions
------------------
14.1. Governing Law. To the extent that state law shall not have been
preempted by the provisions of ERISA or any other law of the United States
heretofore or hereafter enacted, this Agreement shall be administered,
construed and enforced according to the laws of the State of New York.
14.2. Entire Agreement. The Trustee's duties and responsibilities to
the Plans or any Person interested therein shall be limited to those
specifically set forth in this Agreement. No amendment to the Plans or
agreement or instrument affecting the Plans or any other document shall affect
the Trustee's duties or responsibilities hereunder without its prior written
consent.
14.3. Mistake. No mistake made in good faith and in the exercise of due
care in connection with the administration of the Trust Fund shall be deemed
to be a breach of the Trustee's duties if, promptly after discovery of the
mistake, the Trustee takes whatever action may be practicable in the
circumstances to remedy the mistake. Any misstatement or any mistake of fact
in any certificate, notice or other document filed with the Corporation, the
Investment Advisory Board, the Trustee or any Asset Manager shall be corrected
when it becomes known and the Corporation, the Investment Advisory Board, the
Trustee or the Asset Manager, as the case may be, shall make such adjustment
on account thereof as it considers equitable and practicable.
14.4. Reliance on Experts. The Trustee may consult with experts (who
may be experts employed by the Corporation) including legal counsel,
appraisers, pricing services, accountants or actuaries, selected by it with
due care with respect to the meaning and construction of this Agreement or any
provision hereof, or concerning its powers and duties hereunder, and shall be
protected for any action taken or omitted by it in good faith pursuant to or
on the basis of the opinion of any such expert.
14.5. Notices. All notices, reports, annual accounts and other
communications from the Trustee to the Corporation, the Named Fiduciary, the
Investment Advisory Board, an Asset Manager, or any other Person shall be
deemed to have been duly given if mailed, postage prepaid, or delivered in
hand to such Person at its address appearing on the records of the Trustee,
which address shall be filed with the Trustee at the time of the establishment
of the Trust and shall be kept current thereafter by the Named Fiduciary. All
directions, notices, statements, objections and other communications to the
Trustee shall be deemed to have been given when received by the Trustee at its
offices in the form provided in Article XIII.
14.6. Plan Documents. The Named Fiduciary shall provide the Trustee
with complete, current copies of the Plans and the most recent tax
qualification letters relative thereto. The Trustee shall be entitled to rely
upon the Named Fiduciary's attention to this obligation and shall be under no
duty to inquire of any Person as to the existence of any documents not
provided hereunder.
14.7. No Waiver; Reservation of Rights. The rights, remedies,
privileges and immunities expressed herein are cumulative and are not
exclusive, and the Trustee shall be entitled to claim all other rights,
remedies, privileges and immunities to which it may be entitled under
applicable law.
14.8. Descriptive Headings. The captions in this Agreement are solely
for convenience of reference and shall not define or limit the provisions
hereof.
14.9. Spendthrift Provision. Except as may be required by law, no
interest or claim of interest of any kind of any participant in the Plans
under the provisions of this Trust is assignable, nor may any such interest or
claim be subject to garnishment, attachment, execution or levy of any kind,
and no attempt to transfer, assign, pledge or otherwise encumber or dispose of
such interest by act of the Person involved or by operation of law will be
recognized.
14.10. Waiver of Notice. Any notice required under this Agreement may
be waived by the Person entitled to such notice.
14.11. Gender and Number. Where the context admits, words in the
masculine gender shall include the feminine and neuter genders, the plural
shall include the singular, and the singular shall include the plural.
14.12. Counterparts. This Agreement may be executed in two or more
counterparts, any one of which shall constitute an original without reference
to the others.
14.13. Severability. In case any provisions of this Agreement shall be
held illegal or invalid for any reason, such illegality or invalidity shall
not affect the remaining provisions of this Agreement and this Agreement shall
be construed and enforced as if such illegal or invalid provision had never
been set forth in this Agreement.
14.14. Scope of this Agreement. To the extent the parties are permitted
to assign any rights or duties under this Agreement, this Agreement shall be
binding upon the Corporation, the Companies, their successors and assigns, and
upon the Trustee, the Investment Advisory Board, the Asset Managers,
Custodians and their successors and assigns.
14.15. No Reversion in Companies. The Companies shall have no right,
title or interest in the Trust Fund, nor shall any part of the Trust Fund
revert or be repaid to a Company, directly or indirectly, unless:
(a) a contribution is made by such Company by mistake of fact
and such contribution is returned to the Company within one year after
payment to the Trustee; or
(b) a contribution conditioned on the deductibility thereof is
disallowed as an expense for federal income tax purposes and such
contribution (to the extent disallowed) is returned to the Company within
one year after the disallowance of the deduction.
The amount of any contribution that may be returned to a Company must be
reduced by any portion thereof previously distributed from the Trust Fund and
by any losses of the Trust Fund allocable thereto, and in no event may the
return of such contribution cause any Plan participant's account balances to
be less than the amount of such balances had the contribution not been made
under the applicable Plan.
ARTICLE XV
Liabilities
-----------
15.1. Liabilities Mutually Exclusive. The Trustee, the Corporation,
each member of the Investment Advisory Board, each Company, and each Asset
Manager, Custodian and insurance company shall be responsible only for its or
his own acts or omissions.
15.2. Limitation of Liability. To the extent permitted by law, no
member of the Investment Advisory Board, no person to whom the Investment
Advisory Board properly delegates any portion of its responsibilities under
the Trust Fund, and no person who was, is or becomes a director, officer or
employee of the Corporation or any of its subsidiaries or affiliates, shall
have any personal liability of any nature for any act done or omitted to be
done in good faith under or in connection with the Trust Fund.
15.3. Indemnification. To the extent permitted by law, any member or
former member of the Investment Advisory Board, any person who was, is or
becomes an officer or director of the Corporation or any of its subsidiaries
or affiliates to whom the Investment Advisory Board or the Corporation has
delegated any portion of its responsibilities under this Trust Fund, and each
of them, shall be indemnified and saved harmless by the Corporation (to the
extent not indemnified or saved harmless under any liability insurance or
other indemnification arrangement with respect to the Trust Fund) from and
against any and all liability to which such persons may be subjected to by
reason of any act done or omitted to be done in good faith with respect to the
administration of this Trust Fund or the investment of the Trust Fund,
including all expenses reasonably incurred in their defense in the event that
the Corporation failed to provide such defense after having been requested in
writing to do so. In consideration of Bankers' agreeing to enter into this
Agreement, the Corporation hereby agrees to hold harmless Bankers,
individually and as Trustee, and Bankers' directors, officers, and employees,
from and against all amounts, including without limitation taxes, expenses
(including reasonable counsel fees), liabilities, claims, damages, actions,
suits or other charges, incurred by or assessed against Bankers, individually
or as Trustee, or its directors, officers or employees (i) as a direct or
indirect result of any act or omission of any predecessor trustee or fiduciary
appointed under the Plans; (ii) as a direct or indirect result of anything
done in good faith, or alleged to have been done, by Bankers in reliance upon
the directions of any Investment Manager (other than Bankers acting as
Investment Manager), the Investment Advisory Board, the Corporation, or the
Named Fiduciary, or anything omitted to be done in good faith, or alleged to
have been omitted, in the absence of such directions, or (iii) as a direct or
indirect result of the failure of the Corporation, the Investment Advisory
Board, or the Named Fiduciary, to discharge its fiduciary responsibilities
with respect to the Plans. Anything hereinabove to the contrary
notwithstanding, the Corporation shall have no responsibility to Bankers under
subsections (ii) or (iii) of the preceding sentence if Bankers knowingly
participated in or knowingly concealed any act or omission of any Person
described therein knowing that such act or omission constituted a breach of
such Person's fiduciary responsibilities, or if Bankers fails to perform any
of the duties specifically undertaken by it under the provisions of this
Agreement in the manner herein provided, and in accordance with Section 1.4,
or if Bankers fails to act in conformity with duly given and authorized
directions hereunder. The Corporation further agrees that the undertaking
made in the second sentence of this Section shall be binding on its successors
or assigns, and shall survive termination, amendment or restatement of this
Agreement, or the resignation or removal of the Trustee, and that this Article
shall be construed as a contract between the Corporation and the Trustee
according to the laws of the state of New York in effect from time to time.
ARTICLE XVI
Plans and Agreement
-------------------
16.1. Adoption of Agreement by Subsidiaries and Affiliates. Any Company
which is a subsidiary of the Corporation or which may be affiliated with the
Corporation in any way and which is now or may hereafter be organized under
the laws of the United States of America, or of any state or Territory
thereof, with the approval of the Corporation, and by resolution of its own
Board of Directors, may adopt this Agreement, if such subsidiary or affiliate
shall have adopted one or more plans qualified under Section 401(a) of the
Code, as amended. If any such subsidiary or affiliate so adopts this
Agreement, this Agreement shall establish the trust for such plans as are
specified by such subsidiary or affiliate and shall constitute a continuation,
amendment and restatement of any prior trust for any such plans. Furthermore,
the assets of any such plans may be commingled with the assets of other plans
held in the Trust Fund pursuant to Section 6.2 hereof. However, the assets of
any plan so held in the Trust Fund shall not be subject to any claim arising
under any other plan, the assets of which are commingled therewith by the
Trustee for investment purposes, and under no circumstances shall any of the
assets of one plan be available to provide the benefits under another plan. A
separate trust shall be deemed to have been created with respect to each plan
of such subsidiary or affiliate.
16.2. Segregation from Further Participation. The Corporation or any
Company may, at any time, segregate a Plan's trust from further participation
in this Agreement. In such event, the Investment Advisory Board shall file
with the Trustee a document evidencing the Company's or the Corporation's
segregation of a Plan from the Trust Fund and its continuance of a separate
trust in accordance with the provisions of this Agreement as though such
Company or Corporation were the sole creator thereof. In such event, the
Trustee shall deliver to itself as Trustee of such separate trust such share
of the Trust Fund as may be determined by the Trustee to constitute the
appropriate share of the Trust Fund, as confirmed by the Company or the
Corporation, then held in respect of the participating employees of such
subsidiary or affiliate, and such share shall be governed by a separate trust
agreement containing such terms and conditions as are agreed to between the
Company or the Corporation and the Trustee. Such Company or the Corporation
may thereafter exercise, in respect of such separate trust, all of the rights
and powers reserved to the Corporation under the provisions of this Agreement.
The equitable share of any Plan participating in the Trust Fund shall be
immediately segregated and withdrawn from the Trust Fund if the Plan ceases to
be qualified under Section 401(a) of the Code and the Corporation shall
promptly notify the Trustee of any determination by the Internal Revenue
Service that any Plan has ceased to be so qualified.
16.3. Segregation of Assets Allocable to Specific Employees. The
Investment Advisory Board may at any time direct the Trustee to segregate and
withdraw the equitable share of any Plan, or that portion of such equitable
share as may be certified to the Trustee by the Investment Advisory Board as
allocable to any specified group or groups of employees or beneficiaries.
Whenever segregation is required, the Trustee shall withdraw from the Trust
Fund such assets as it shall deem to be equal in value to the equitable share
to be segregated. Such withdrawal from the Trust Fund shall be in cash or in
any property held in such Trust Fund, or in a combination of both, as directed
by the Investment Advisory Board. The Trustee shall thereafter hold the
assets so withdrawn as a separate trust fund in accordance with the provisions
of this Agreement, which shall be construed in respect of such assets as if
the Company or the Corporation maintaining such Plan (determined without
regard to whether any subsidiaries or affiliates of such employer have joined
in such Plan) has been named as the Corporation hereunder. Such segregation
shall not preclude later readmission to the Trust Fund.
ARTICLE XVII
Merger or Consolidation
-----------------------
17.1. Merger or Consolidation of Trustee. Any corporation, or national
association, into which the Trustee may be merged or with which it may be
consolidated, or any corporation, or national association, resulting from any
merger or consolidation to which the Trustee is a party, or any corporation,
or national association, succeeding to the trust business of the Trustee
hereunder, shall become the successor of the Trustee hereunder, without the
execution or filing of any instrument or the performance of any further act on
the part of the parties hereto.
17.2. Merger or Consolidation of Corporation. Any corporation into
which the Corporation or any Company may be merged or with which it may be
consolidated, or any corporation succeeding to all or a substantial part of
the business interests of the Corporation may become the Corporation or
Company hereunder by expressly adopting and agreeing to be bound by the terms
and conditions of the Plans and this Agreement and so notifying the Trustee to
such effect by submission to the Trustee of an appropriate written document.
17.3. Merger or Consolidation of Plan. In the event that the Investment
Advisory Board or the Corporation authorizes and directs that the assets of
another plan be merged or consolidated with or transferred to a Plan partici-
pating in this Trust Fund, the Trustee shall take no action with regard to
such merger, consolidation or transfer until it has been notified in writing
that each participant covered under the plan the assets of which are to be
merged, consolidated or transferred will immediately after such merger,
consolidation or transfer be entitled to a benefit either equal to or then
greater than the benefit he would have been entitled to had the plan been
terminated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized and their
corporate seals to be hereunto affixed and attested to as of the day and year
first above written.
(Corporate Seal) FORT HOWARD CORPORATION
Attest: By /s/ James W. Nellen II
----------------------
Title: Vice President
/s/ Cheryl A. Thomson
- -------------------------------------
Title: Assistant Corporate Secretary
(Corporate Seal) BANKERS TRUST COMPANY
Attest: By /s/ Gary Cohen
----------------------
Title: Vice President
/s/ Robert M. Bynke
- --------------------------------------
Title: Managing Director
STATE OF WI )
) ss.:
COUNTY OF BROWN )
On the 29th day of December, 1995, before me personally came
James W. Nellen II to me known, who being by me duly sworn, did depose and
say: that he/she resides in Green Bay, Wisconsin; that he/she is the Vice
President of FORT HOWARD CORPORATION, the corporation described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by order of the Board of Directors of said corporation, and that
he/she signed his/her name thereto by like order.
/s/Jean M. Ehren
----------------------
Notary Public
Commission Expires 3/23/97
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of December, 1995, before me personally came Gary Cohen
to me known, who being by me duly sworn, did depose and say: that he/she
resides in New York, New York; that he/she is the Vice President of BANKERS
TRUST COMPANY, the corporation described in and which executed the above
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he/she signed
his/her name thereto by like order.
/s/Richard Corazza
----------------------
Richard Corazza
Notary Public, State of New York
No. 31-4638819
Qualified in New York County
Commission Expires 7/31/96
Exhibit A
---------
Fort Howard Corporation Profit Sharing Retirement Plan
Harmon Assoc., Corp. Profit Sharing Plan
Appendix A
----------
Investment Funds
----------------
"Conservative" Balanced Investment Fund
"Original" Balanced Investment Fund
"Aggressive" Balanced Investment Fund
Short-Term Investment Fund
Fort Howard Common Stock Fund
Exhibit 4.5
-----------
FORT HOWARD CORPORATION
PROFIT SHARING RETIREMENT PLAN
SUMMARY PLAN DESCRIPTION
Table of Contents
Introduction
Eligibility Requirements for Participation
Service
Reemployment
Participant Contributions
How the 401(k) Plan Works
Annual Base Pay
Company Contributions
Allocation of the Company
Contribution
Example
Contribution Limits
Top-Heavy Rules
Plan Accounts
Investment Funds
Balanced Investment Fund (BIF)
Short Term Investment Fund (STIF)
Fund Transfers
Vesting
Reemployed Participants
Reemployment Before Incurring a One-Year Break in Service
Reemployment After Incurring a One-Year Break in Service
Restoration of Forfeited Amounts
Break in Service
Transferred Participants
Payment of Accounts
Death Benefits
Inservice Withdrawals
Withdrawals from Prior Participant Account
Hardship Withdrawals from Deferred Wage Account
Rollover Contributions
Claiming Your Benefits
Appealing a Denied Claim
Administrative Information
Formal Plan Document
Name and Address of Employer
Plan Year and Plan Number
Plan Administrator
Trustee
Agent for Service of Legal Process
Type of Plan
Future of the Plan
No Contract of Employment
Assignment of Benefits
Your Rights Under ERISA
INTRODUCTION
- ------------
The following is a summary of the Fort Howard Corporation Profit Sharing
Retirement Plan (the "Plan") as in effect on January 1, 1990. The Plan is
intended to provide future financial security for eligible employees of Fort
Howard Corporation.
As its name indicates, the Plan is a profit sharing plan, under which the
Company contributes a share of its profits to the Plan each year. The Plan
also contains a wage deferral provision under Section 401(k) of the Internal
Revenue Code. This provision allows you to contribute a portion of your pay
to the Plan on a pre-tax basis. With this combination of profit sharing and
401(k) wage deferral features, the Plan affords you a tax-effective
opportunity to have:
- - more money available at your retirement, and
- - your own tax shelter.
This summary describes the provisions of the Plan in detail. We urge you to
review it carefully, so that you can make the most effective use of the Plan
in your retirement planning.
ELIGIBILITY REQUIREMENTS FOR PARTICIPATION
- ------------------------------------------
You are eligible to participate in the Plan if you complete at least 1,000
Hours of Service during the 12 months ending on the first anniversary of your
date of hire. If you satisfy this rule, you will enter the Plan on the
June 30 or December 31 that immediately follows the first anniversary of your
date of hire. If you do not satisfy this rule, you may become a participant
on any December 31 following the first anniversary of your date of hire,
provided you complete a Year of Service (see definition of "Year of Service"
on Page 1105) during the calendar year ending on that December 31.
Example:
If you were hired by the Company on August 5, 1990, and you completed 1,000
Hours of Service in the 12 months thereafter, you would become a participant
in the Plan on December 31, 1991. If you did not complete at least 1,000
Hours of Service in the 12 months following your date of hire, you would still
be eligible to participate on December 31, 1991, provided you completed a Year
of Service during the calendar year ending on that date.
The Investment Advisory Board, which is responsible for the administration of
the Plan, will notify you in advance of the date on which you will become
eligible to participate.
SERVICE
An Hour of Service is any hour for which you are paid or entitled to payment
by the Company for the performance of duties. Hours of Service also include
certain periods during which no duties are performed, such as:
- - Vacations and holidays,
- 2 -
- - Authorized disability absence,
- - Periods during which you are laid off by the Company. However, if you are
not called back to work within two years, your credit for Hours of Service
will cease at the end of the two-year period.
- - Military leaves required by law or granted by the Company. You will
receive credit for Hours of Service for the period of the leave.
- - Leaves of absence granted by the Company, but only for up to one year.
A Year of Service is any calendar year in which you complete at least 1,000
Hours of Service with the Company or a Related Corporation. However, for
periods prior to 1976, Years of Service are credited under the terms of the
Plan in effect on December 31, 1975.
The Company means Fort Howard Corporation and any subsidiary, affiliate, or
division of Fort Howard Corporation that has adopted the Plan. A Related
Corporation is any member of the controlled group to which the Company
belongs.
REEMPLOYMENT
If you terminate your employment after becoming a participant, you will become
a participant again immediately upon your reemployment. You may then begin
your deferred wage contributions as of the December 31 or June 30 coincident
with or next following your reemployment.
PARTICIPANT CONTRIBUTIONS
- -------------------------
You are not required to contribute to the Plan, but if you wish, you may elect
to make deferred wage contributions of between one and eight percent (1, 2, 3,
4, 5, 6, 7, or 8%) of your Annual Base Pay. Deferred wage contributions are
made by a reduction of your compensation each pay period and are contributed
by the Company to the Plan on your behalf. To contribute, you must file a
written election form with the Investment Advisory Board by such date as the
Board determines. Your election will be effective beginning with the first
paycheck in the month next following the date the Investment Advisory Board
approves your election.
If you are absent because of disability, leave of absence, layoff, or military
leave when you first become eligible to contribute, you may not make
contributions until you return to active employment. You may then make an
election to contribute effective as of a date determined by the Investment
Advisory Board.
The amount by which your Annual Base Pay is reduced through deferred wage
contributions is not reported as wages for federal income tax purposes on the
W-2 form filed with the Internal Revenue Service at the end of each year.
However, the amount of your Annual Base Pay reduced in this manner is subject
to Social Security tax and, in some states, to state income taxes.
- 3 -
Example:
Suppose that your Annual Base Pay for 1990 is $30,000. If you elect to make
deferred wage contribution of 6%, $1,800 will be contributed to the Plan on
your behalf and $28,200 will be reported as taxable income for federal income
tax purposes on your 1990 Form W-2. However, $30,000 will be subject to
Social Security tax.
You may elect to change the rate of your deferred wage contributions, or
discontinue or resume contributions, effective as of the first pay period for
which compensation is received in the month next following the date the
Investment Advisory Board approves your election.
HOW THE 401(k) PLAN WORKS
Prior to January 1, 1984, any contributions you made to the Plan were made on
an "after-tax" basis. The amount of contribution was first taxed as part of
your total cash pay and was then transferred to the Plan. Effective
January 1, 1984, any contributions you make to the Plan are made on a "pre-
tax" basis.
The following is a general example that compares the tax effect of saving for
your retirement by contributing to the Plan (pre-tax savings) versus
depositing your money in an ordinary savings account or money market fund
(after-tax savings). Assume that the employee would contribute 6% of pay to
either the Plan or an ordinary after-tax savings account. First read the
column marked "After-Tax Savings" downward to review how it works and then
come back and read the second column downward to see how the Plan works.
After-Tax
Savings The Plan
--------- --------
Employee's Annual $25,000 $23,500
Base Pay subject to ($25,000-$2,500
federal tax pre-tax
contributin)
Federal taxes at a rate 3,750 3,525
of 15%
State taxes at a rate 1,250 1,175
of 5%
Social Security taxes 1,912 1,912
at a rate of 7.65%
Savings or Plan
contribution at a rate
of 6% 1,500 (already reflected
above)
Net, take home pay $16,588 $16,888
Tax Savings Under Plan: $300.00
- 4 -
Under the Plan, this employee receives $300 more take home pay, which he or
she may add to separate savings for retirement or use for other purposes.
This example assumes that the state in which the employee resides does not
impose state income tax on deferred wage contributions; if the state did
impose such a tax, the employee's savings would be reduced by $75.
ANNUAL BASE PAY
- ---------------
Your "Annual Base Pay" means your total compensation received from the Company
for services rendered to the Company during a calendar year, including
overtime, holiday pay, sick days, salary continuation, vacation pay, and any
deferred wage contributions you elect to have made on your behalf under the
Plan, but excluding goodwill and discretionary bonuses, short term disability
benefits, suggestion awards and sales incentive compensation, amounts you
contribute to a nonqualified retirement plan, and any other special or unusual
compensation. Your Annual Base Pay in any Plan Year (January 1 through
December 31) may not exceed $200,000 (or a greater amount determined by the
Internal Revenue Service to reflect cost of living increases).
COMPANY CONTRIBUTIONS
- ---------------------
Each Plan year (January 1 through December 31), the Company will make a
contribution to the Plan equal to 10% of its adjusted profits, but not more
than 10% of the total Annual Base Pay of all participants. However, to ensure
financial stability of the Company and a fair return to the stockholders, the
Company contribution under this formula will be limited, if necessary, so that
the Company's net profit (after taxes, deductions and the contribution) are
not less than 6% of the Company's net worth at the beginning of the Plan year.
If profits are deficient under this 6% rule, or if the Company incurs a loss
in any year, the amount of the deficiency or loss will be carried forward and
charged to net profits in the next year or years. The Company may not make a
contribution to the Plan under this formula until its net profits exceed 6%
plus the amount of the accumulated deficiency or loss. Adjusted profits, net
profits, and net worth are all generally determined according to recognized
accounting principles and practices.
In addition to the contribution described above, the Company may make a
discretionary contribution to the Plan in such amount as the Board of
Directors may determine. However, the total contributions by the Company are
limited to the amount that it can deduct as an expense on its corporate income
tax return.
ALLOCATION OF THE COMPANY CONTRIBUTION
You are eligible to share in the Company's contribution if you are employed by
the Company during the Plan Year, but not if your employment terminated due to
your resignation or dismissal. The Company's contribution and any forfeitures
are allocated as of the end of the Plan Year, as follows:
- - 25% of the Company contribution is allocated to the accounts of all
participants, pro rata, according to their Annual Base Pay for the Plan
Year,
- 5 -
- - 25% of the Company contribution is allocated to the accounts of all
participants, pro rata, according to their Service Units (as defined
below), and
- - 50% of the Company contribution is allocated to the accounts of those
participants making deferred wage contributions under the Plan, pro rata,
according to the amount of such deferred wage contributions.
You earn one Service Unit for each Year of Service (see Page 1105) you
complete after January 1, 1976. If you were employed by the Company on
December 31, 1975, you will be credited with Service Units for periods prior
to that date as determined under the terms of the Plan then in effect.
As long as you are eligible, you share in the Company's contribution even if
you do not elect to make deferred wage contributions under the Plan. However,
if you do make deferred wage contributions, you share in the entire Company
contribution, not just half of it.
Example:
As an example, assume the following facts:
Company contribution for the year - $10,000,000
Your deferred wage contributions - $ 1,500
Your Annual Base Pay - $ 25,000
Your Service Units at Dec. 31 - 10
Total of participants' deferred wage
contributions - $ 4,700,000
Total of participants' Annual
Base Pay - $ 90,000,000
Total of participants' Service Units - 40,000
Your share of the Company contribution is determined as follows:
Portion of the Company contribution allocated on
the basis of Annual Base Pay:
$2,500,000 = 25% of total Company contribution
$25,000
----------- x $2,500,000 = $694.44
$90,000,000
Portion of the Company contribution allocated on
the basis of Service Units:
$2,500,000 = 25% of total Company contribution
10
------ x $2,500,000 = $625.00
40,000
- 6 -
Portion of the Company contribution allocated on
the basis of deferred wage contributions:
$5,000,000 = 50% of total Company contribution
$1,500
---------- x $5,000,000 = $1,595.74
$4,700,000
Because you elected to make deferred wage contributions to the Plan, you will
receive a company contribution based on the above:
$694.44 + $625.00 + $1,595.74 = $2,915.18
If you had not elected to make deferred wage contributions, you would have
received a Company contribution of $1,319.44, based on your Annual Base Pay
and Service Units only.
CONTRIBUTION LIMITS
- -------------------
Your deferred wage contributions in any calendar year may not exceed $7,000
(or greater amount determined by the Internal Revenue Service). Your deferred
wage contributions are also subject to a discrimination test that compares the
rate of contributions made by highly compensated employees to the rate of
contributions made by all other employees. If the difference between the two
rates becomes too great, the Investment Advisory Board will reduce
contributions made by highly compensated participants (generally, those
earning more than $50,000, as adjusted). If you are a highly compensated
participant, another Internal Revenue Code discrimination test may restrict
the amount of Company contributions that you may be allocated on the basis of
your deferred wage contributions.
The Internal Revenue Service limits the amount of contributions and
forfeitures that may be credited to your accounts under the Plan. The
limitation is currently $30,000, or 25% of your total Form W-2 compensation
for the year, whichever is less. Any Company contributions and forfeitures
that cannot be allocated to a participant's account under the Plan will be
allocated to the accounts of remaining Plan participants.
TOP-HEAVY RULES
Finally, there are special rules that will apply in the very unlikely event
that the Plan ever becomes "top-heavy." The Plan will be top-heavy if the
account balances of key employees (e.g. officers) exceed 60% of the account
balances of all participants in the Plan. If the Plan does become top-heavy:
- - the vesting schedule for all participants will accelerate for the period of
time the Plan remains top-heavy, and
- - a non-key employee who is employed on the last day of a Plan Year during
which the Plan is top-heavy will be entitled to a minimum allocation of the
company contribution. This minimum will equal 3% of the employee's
compensation, but not more than the highest percentage of compensation
allocated to a key employee.
- 7 -
PLAN ACCOUNTS
- -------------
The Trustee will maintain a "Company Contribution Account" to reflect your
share of Company contributions and forfeitures (see Page 1117) and income
attributable to those items. The Trustee will also maintain a "Deferred Wage
Account" to reflect your deferred wage contributions, if any, and income
attributable to those contributions. If you made contributions to the Plan
prior to January 1, 1984 or you made a rollover contribution (see Page 1127),
these will be maintained in a separate account, called your "Prior Participant
Account."
Your accounts will be invested in one or more investment funds as determined
by the Investment Advisory Board. Currently, the Investment Advisory Board
maintains two investment funds, as described in the next section.
As of the last day of each month (an "accounting date"), your accounts will be
adjusted, with the accounts of other participants, upward or downward, to
reflect your share of the gains, losses, appreciation, and depreciation of the
investment funds. This adjustment is made after your accounts have been
charged with any payments or distributions made to you or for your benefit
during the period.
For example:
If the total value of all accounts invested in an investment fund equals
$10,000,000 and your account balance is $5,000, your account represents
.05% of the total of all accounts:
$5,000
----------- = .05%
$10,000,000
If the value of the investment fund increased by $75,000 during the
month, your share of the fund increase would be $37.50:
$75,000 x .05% = $37.50
As of the end of the month, your account would have a balance of
$5,037.50 ($5,000 + $37.50).
This example assumes an increase in the investment fund's value.
Unfortunately, investments do not always work out so well. Should the
investment fund have experienced a loss in value of $75,000 and all other
amounts remain the same, then your account balance would have been reduced by
$37.50 so that as of the end of the month it would total $4,962.50
($5,000-$37.50).
You will receive annual statements showing the amounts credited to your
accounts.
Your deferred wage contributions, Company contributions, and the interest or
appreciation in the value of your accounts under the Plan are not taxable to
you while such accounts are held in the Plan. These amounts accumulate on a
tax-deferred basis and provide you with a very favorable tax shelter while you
work for the Company.
- 8 -
INVESTMENT FUNDS
- ----------------
The Trustee currently maintains two investment funds, the Balanced Investment
Fund (BIF) and the Short Term Investment Fund (STIF). Each new participant
will select the portion of his or her accounts, in increments of 10%, that is
to be invested in either the BIF or the STIF. Participants under age 50 may
allocate up to 50% of their total accounts to the STIF, while those age 50 and
over may allocate up to 100% to the STIF.
BALANCED INVESTMENT FUND (BIF)
The objective of the Balanced Investment Fund is to invest profit sharing
assets in a diversified group of securities through professional investment
management. Investments by several specialized managers include stocks,
bonds, short-term money market instruments and real estate. The Investment
Advisory Board sets percentage targets for the mix of the various asset types
in the Fund and may change these targets based upon changing conditions.
SHORT TERM INVESTMENT FUND (STIF)
The Short Term Investment Fund is composed of high grade money market
instruments having maturities of less than one year, the majority of which are
due within 30 days. Because preservation of the principal value is a prime
objective, only the highest quality securities are used in this Fund. The
Fund's purpose is to provide a money market fund alternative to the Balanced
Fund's diversified investment approach.
FUND TRANSFERS
After initially choosing the percentage of their total account balances to be
allocated to the BIF or the STIF, participants may make subsequent changes in
the percentage amounts invested in each Fund. These changes may be made at
any time during the year; however, once a change has been made, a participant
may not make another change in the following 12 month period. When making a
decision to change, a Participant should consider his or her closeness to
retirement age and his or her need for more stable investment returns.
Participants wishing to make changes may obtain forms through the Personnel
Department.
VESTING
- -------
Being vested means that you have a nonforfeitable right to all or a portion of
your accounts. Under the Plan, you are always fully vested in your Deferred
Wage and Prior Participant Accounts, if any. If your employment terminates
because of your retirement or death, you are also fully vested in your Company
Contribution Account. So if you retire after age 55 or because of disability,
or if you die while actively employed, you will have a right to the total
amount credited to your accounts.
- 9 -
If you resign or are dismissed before retirement, however, you will be vested
in your Company Contribution Account according to the following schedule:
Years of Service Percentage
Vested
Less than 3 years 0%
3 years but less than 4 years 20%
4 years but less than 5 years 40%
5 years but less than 6 years 60%
6 years but less than 7 years 80%
7 years or more 100%
If you were a participant in the Plan on or before December 31, 1988, the
vested percentage of your Company Contribution Account will not be less than
as determined under the vesting schedule in effect on that date.
Subject to the following section on Reemployed Participants, any part of your
account that is not vested when you terminate employment will be forfeited.
Once each year, these "forfeitures" are allocated to the accounts of remaining
participants in the same manner as Company contributions are allocated.
Example:
Suppose that you were hired January 1, 1986, and terminated your employment on
November 15, 1991. If you completed at least 1,000 Hours of Service in each
year (1986 through 1991), you would have 6 Years of Service and would be 80%
vested; that is, you would be entitled to 80% of your Company Contribution
Account. Of course, your Deferred Wage and Prior Participant Accounts, if
any, would be 100% vested.
REEMPLOYED PARTICIPANTS
- -----------------------
The following rules apply to participants in the Plan who terminate employment
and then become reemployed:
REEMPLOYMENT BEFORE INCURRING A ONE-YEAR BREAK IN SERVICE
If you terminate your employment but are reemployed before incurring a one-
year break in service (see Page 1119), the nonvested portion of your account
(if any) will be recredited to your Company Contribution Account. If you
received a distribution of your vested accounts, the amount of any forfeiture
resulting from the termination will be recredited. If you wish, you may repay
the amount previously distributed, but you are not required to do so under the
Plan.
REEMPLOYMENT AFTER INCURRING A ONE-YEAR BREAK IN SERVICE
If your employment terminated after December 31, 1975, and you are reemployed
after incurring a one-year break in service, your prior Years of Service will
be restored once you complete a Year of Service. However, if your employment
terminated on or before December 31, 1975, your prior Years of Service will
not be restored.
- 10 -
RESTORATION OF FORFEITED AMOUNTS
If you terminate your employment on or after January 1, 1985 (or during 1984)
and you are rehired before incurring five consecutive one-year breaks in
service, but after your vested accounts had been distributed to you, you may
repay (within five years of your reemployment or by the end of five
consecutive one-year breaks in service that begin after your distribution, if
earlier) the total amount distributed as a result of your earlier termination.
If you made such repayment, both the amount repaid and the forfeiture
resulting from your prior termination will be credited to your accounts.
If you are reemployed following a break in service, you will lose the right to
the forfeiture amount resulting from your prior termination under the
following circumstances:
- - you incur a one year break in service prior to January 1, 1985,
- - you terminate after January 1, 1985, and incur five or more consecutive
one-year breaks in service, or
- - you terminate after January 1, 1985, are not fully vested when you
terminate, are rehired before incurring five consecutive one-year breaks in
service, and fail to repay the amount of your prior distribution as
described above.
However, if your accounts had not previously been distributed to you and you
are reemployed before incurring five consecutive one-year breaks in service,
the forfeiture resulting from your prior termination will be credited to your
accounts.
BREAK IN SERVICE
A "break in service" means a calendar year during which you do not complete
more than 500 Hours of Service. However, if you are absent due to unpaid
leave for maternity or child rearing, special rules apply to avoid a break in
service in the first year of the absence. An unpaid leave for maternity or
child rearing is a leave due to the pregnancy, birth, or adoption of your
child or for the purpose of caring for your child following its birth or
placement.
TRANSFERRED PARTICIPANTS
- ------------------------
If you transfer from employment with the Company to employment with a Related
Corporation that has not adopted the Plan, or if you transfer to a position
with the Company so that you are no longer eligible under the Plan, you will
not be permitted to make deferred wage contributions, nor will you be eligible
for Company contributions and forfeitures. However, you will continue to earn
Years of Service as long as you are employed with the Company or a Related
Corporation. You will be deemed to retire or otherwise terminate your
employment when you are no longer employed by the Company or any Related
Corporation.
- 11 -
PAYMENT OF ACCOUNTS
- -------------------
Upon your retirement at age 55 or due to disability, or upon other termination
of employment, you may elect to receive your accounts in either of the
following forms:
- - a lump sum, or
- - a series of installments over a period not exceeding your life expectancy
or the joint life expectancy of you and your beneficiary.
Payments will begin as soon as possible after your retirement or termination.
If your accounts exceed $3,500, however, they may not be paid prior to age 65
without your written consent. If you attain age 70-1/2 on or after January 1,
1988, you will be required to begin receiving payments even though you remain
employed. These payments must begin no later than April 1 of the Plan Year
following the Plan Year in which you reach age 70-1/2.
If you elect installment payments, you may be permitted to change the
installment period or the frequency of payments, in accordance with rules
established by the Investment Advisory Board. However, all installment
distributions must comply with the requirements of the Internal Revenue Code.
DEATH BENEFITS
- --------------
Upon your death, any remaining balance in your accounts will be paid to the
beneficiary you have designated. If you are married and designate someone
other than or in addition to your spouse as your primary beneficiary, your
spouse must consent in writing to your designation. Your spouse's consent to
your designation must be witnessed by a Plan representative or a notary
public.
You may select the form of payment to your beneficiary, but if you do not do
so, the Investment Advisory Board will select the form of payment. If you die
after the date your benefits are required to begin under the Internal Revenue
Code (generally the April 1 of the Plan Year following the Plan Year in which
you attain age 70-1/2), the balance in your accounts must be distributed over
a period not exceeding the period over which payments were being made to you.
If you die before the date your benefits are required to begin, your accounts
must be distributed over a period not exceeding the greatest of the following:
- - five years from your death,
- - the life expectancy of your beneficiary, provided payments begin within one
year of your death, or
- - in the case of payments to your spouse, the life expectancy of your spouse,
provided payments begin by the date you would have attained age 70-1/2.
- 12 -
It is important that you complete a beneficiary designation form and file it
with the Investment Advisory Board. If you do not designate a beneficiary or
if your designated beneficiary dies before you or before distribution of your
accounts has been completed, the Investment Advisory Board will direct payment
of your remaining accounts to the first surviving of the following in the
order shown::
- - your spouse,
- - your children (in equal parts),
- - your parents (in equal parts),
- - your brothers and sisters (in equal parts), or
- - the executors or administrators of your estate.
Copies of beneficiary designation forms may be obtained from the Investment
Advisory Board.
INSERVICE WITHDRAWALS
- ---------------------
Although the main purpose of the Plan is to provide retirement benefits, you
may withdraw funds from your accounts while you are actively employed by the
Company. Subject to certain conditions, you may withdraw amounts contributed
to your Prior Participant Account or your Deferred Wage Account, but you may
not withdraw the earnings on these Accounts. Also, you may not withdraw any
amounts from your Company Contribution Account. Inservice withdrawals must be
approved by the Investment Advisory Board.
WITHDRAWALS FROM PRIOR PARTICIPANT ACCOUNT
You may withdraw funds from your Prior Participant Account for the following
purposes:
- - medical expenses incurred by you, your spouse, or your dependents;
- - payment on an existing mortgage on your principal residence;
- - repairs on your residence;
- - post high school education expenses for you, your spouse, or your
dependents; or
- - purchase by you of a new principal residence.
Under the Plan, you may withdraw only the amount reasonably necessary to
satisfy one of these needs and you must verify this amount by submitting
certain information to the Investment Advisory Board. Withdrawals also are
subject to certain minimum amounts. The information required to verify
withdrawal amounts and the withdrawal minimums are:
- 13 -
For medical expenses:
- ---------------------
You must provide a copy of the explanation of benefits statement received from
the applicable Fort Howard medical plan and the benefits statement from any
other insurance company that may be involved.
Minimum withdrawal: $500.00
For payments on an existing mortgage on your principal residence:
- -----------------------------------------------------------------
You must provide a letter addressed to you from your present mortgage holder,
signed by an officer of the mortgage holder, with the following information:
- - current mortgage balance;
- - address of residence;
- - year the residence was purchased;
- - present monthly mortgage payments; and
- - monthly payments after reduction of mortgage; if applicable.
Minimum withdrawal: $1,000.00
For repairs on your residence:
- ------------------------------
You must provide a contractor's estimate showing the date, your name and
address, a description of the work, itemized costs of materials and labor, and
the contractor's signature. If you are doing the repair work yourself, you
must provide a supplier's estimate showing the date, your name and address,
and an itemized cost of materials and the supplier's signature.
Minimum withdrawal: $1,000.00
For education expenses:
- -----------------------
You must provide the name of the person seeking post high school education, as
well as their relationship to you. You must also provide a letter from the
school on its letterhead, indicating that this person has been accepted for
enrollment, the estimated cost of room and board and tuition by semester,
quarter, or other applicable payment period. Finally, you must provide the
date this person is expected to begin school.
Minimum withdrawal: $500.00
For purchase of a new principal residence:
- ------------------------------------------
You must provide a copy of the offer to purchase signed by the seller and by
you. This offer should include the address of the home being purchased, the
purchase price, the amount of the downpayment and estimated closing costs, and
the amount of the mortgage. The latter two items usually are provided by the
mortgage lender on company letterhead and signed by an officer of the mortgage
lender. You must also provide a statement that this residence will constitute
your principal residence and indicate whether the residence is a single
residence or a duplex.
- 14 -
Minimum withdrawal: $1,000.00. However, if you seek a withdrawal to purchase
your first residence, the minimum withdrawal amount is waived.
The Investment Advisory Board may also require that you provide paid receipts
or other information verifying that your withdrawal was used for the stated
purpose.
The cumulative amount of all withdrawals may not exceed the lesser of your
total prior participant contributions to the Plan or the balance of your Prior
Participant Account as of the accounting date immediately preceding your
withdrawal. Payments of withdrawal amounts will be made pro rata from the
investment funds in which your Prior Participant Account is invested, or as
the Investment Advisory Board permits you to direct in accordance with uniform
rules and procedures.
All or a portion of your withdrawal amount may be repaid to your Prior
Participant Account as of the last day of any month. For more information
regarding repayment of withdrawals, contact the Personnel Department.
HARDSHIP WITHDRAWALS FROM DEFERRED WAGE ACCOUNT
You may make withdrawals from your Deferred Wage Account for one of the
following hardships:
- - medical expenses described in Section 213(d) of the Internal Revenue Code
incurred by you, your spouse, or your dependents;
- - purchase of your principal residence (not including regular mortgage
payments);
- - tuition for the next semester or quarter of post-secondary education for
you, your spouse, or your dependents; or
- - preventing eviction from or foreclosure on your principal residence.
A hardship withdrawal is permitted only if you can demonstrate an immediate
and heavy financial need; to demonstrate your financial need, you will be
required to submit the same types of documents as listed before for
withdrawals from your Prior Participant Account (see Page 1122). In addition,
the withdrawal must be necessary to satisfy your financial need. A withdrawal
will be considered necessary to satisfy an immediate and heavy financial need
if all of the following requirements are met:
- - the withdrawal does not exceed the amount of the immediate and heavy
financial need;
- - you have obtained all distributions, other than inservice hardship
withdrawals;
- - your deferred wage contributions will be suspended for 12 months after
receiving the withdrawal; and
- - your deferred wage contributions for your taxable year immediately
following the taxable year of the hardship withdrawal cannot exceed $7,000
(or a greater amount as determined by the Internal Revenue Service) less
the amount of your deferred wage contributions for the taxable year of the
hardship withdrawal.
- 15 -
For example, if you contribute $1,200 in 1991 and then make a hardship
withdrawal in May 1991, your contributions will be suspended for the next 12
months. When your contributions resume in June 1992, they will be limited to
$7,979 (or a greater limit then in effect) minus $1,200 or $6,779.
For purposes of hardship withdrawals, your resources include any assets of
your spouse and minor children that are reasonably available to you.
Withdrawals are subject to certain minimum amounts. If your withdrawal is
needed for a medical or educational hardship, the minimum amount is $500.00.
If your withdrawal is needed for purchase of a new residence or for preventing
eviction from or foreclosure on your residence, the minimum amount is
$1,000.00.
The cumulative amount of all hardship withdrawals may not exceed the lesser of
your total deferred wage contributions to the Plan or the balance of your
Deferred Wage Account as of the accounting date immediately preceding your
hardship withdrawal. Payments of withdrawal amounts will be made pro rata
from the investment funds in which your Deferred Wage Account is invested, or
as the Investment Advisory Board permits you to direct in accordance with
uniform rules and procedures.
ROLLOVER CONTRIBUTIONS
- ----------------------
A rollover contribution is a transfer of money or property to the Plan upon
distribution from another qualified employee benefit plan or from an
Individual Retirement Account. If you receive such a distribution, you may
make a written request to the Investment Advisory Board to make a rollover
contribution to the Plan even if you are not a participant in the Plan. A
rollover contribution must be made within 60 days of your receipt of the
distribution and must meet certain rules set forth in the Plan and the
Internal Revenue Code.
If you make a rollover contribution to the Plan, your contribution will be
credited to a rollover subaccount established within your Prior Participant
Account. You will be considered a participant in the Plan only for the
purpose of maintaining this subaccount. You will not be eligible for Company
contributions or forfeitures, nor will you be eligible to make deferred wage
contributions until you satisfy the requirements set forth on Page 1103.
Your rollover subaccount will be credited with investment gains or losses as
described on Page 1113. You will always be fully vested in your rollover
subaccount.
CLAIMING YOUR BENEFITS
- ----------------------
When you terminate your employment or retire, you should complete a form to
request the manner in which you would like your account balances distributed.
If you feel you are entitled to benefits that have not been paid, you may
notify the Investment Advisory Board in writing. Within 90 days after
receiving your claim, the Investment Advisory Board will either grant or deny
- 16 -
your claim. If your claim is denied for any reason, the Investment Advisory
Board will provide written notice of the denial setting forth.
- - the specific reasons for denial,
- - reference to the Plan provisions on which the denial is based,
- - any additional information necessary to perfect the claim, and
- - a description of the procedure for requesting a review of the denial.
APPEALING A DENIED CLAIM
- ------------------------
If you are not satisfied with the Investment Advisory Board's decision, you
may appeal. If you decide to proceed with a formal appeal, you may submit
additional information and comments with your request. You may also request
and receive copies of pertinent documents, although in some cases approval may
be needed for the release of confidential information. Any formal written
appeal should include the following:
- - the date on which your request for review was filed with the Investment
Advisory Board,
- - the specific portions of the Investment Advisory Board's denial that you
wish the Board to review,
- - a statement of why you believe the Investment Advisory Board should reverse
its previous denial of your claim, and
- - any written material you wish the Investment Advisory Board to examine in
its consideration of your position.
You must file your written appeal within 60 days after you have been notified
of the claim's denial.
A decision will be made within 60 days following the receipt of your request
for review. Notification of the decision on review will specify the reasons
for the decision. Any decision made by the Investment Advisory Board in good
faith is final and binding.
ADMINISTRATIVE INFORMATION
- --------------------------
FORMAL PLAN DOCUMENT
This document is only a summary of the Plan. It is not a part of the formal
Plan document and does not modify the Plan. In the event of conflict between
this summary and the formal Plan document, the terms of the formal Plan
document will control. The Plan document may be examined at any reasonable
time in the Fort Howard offices. If you have any questions about the Plan
after reading this summary, you should contact the Personnel Department.
- 17 -
NAME AND ADDRESS OF EMPLOYER
Fort Howard Corporation
1919 South Broadway
P. O. Box 19130
Green Bay, Wisconsin 54307-9130
Telephone: (414) 435-8821
ID No. 39-1090992
PLAN YEAR AND PLAN NUMBER
The financial records of the Plan are kept on a Plan Year basis ending on each
December 31. The Plan number is 001.
PLAN ADMINISTRATOR
The Plan Administrator is the Investment Advisory Board, which is a group of
individuals appointed by the Chairman of the Board of the Company. The Plan
Administrator has the authority to control and manage the operation and
administration of the Plan. The Plan Administrator's address and telephone
number are:
Investment Advisory Board
c/o Fort Howard Corporation
1919 South Broadway
P. O. Box 19130
Green Bay, Wisconsin 54307-9130
Telephone: (414) 435-8821
The Plan Administrator's decisions will be final and binding.
TRUSTEE
All contributions to the Plan are deposited into a trust fund, which is held
and invested pursuant to a trust agreement between the Company and the
Trustee. The name and address of the Trustee are:
Mellon Bank, N.A.
One Mellon Bank Center
Pittsburgh, Pennsylvania 15258
AGENT FOR SERVICE OF LEGAL PROCESS
The Plan Administrator is designated as the agent for service of legal
process. Legal process may be served upon the Plan Administrator or the
Trustee of the Plan at the addresses set forth in the preceding sections.
TYPE OF PLAN
The Plan is a profit sharing and salary deferral (401(k)) plan. The Plan is
not insured by the Pension Benefit Guaranty Corporation (PBGC) because the
PBGC does not extend its insurance program to these types of plans.
FUTURE OF THE PLAN
Although the Company intends to continue the Plan indefinitely, the Company
reserves the right to terminate, suspend, withdraw, amend or modify the Plan
- 18 -
in whole or in part at any time, subject to the provisions of the Plan. If
the Plan should ever terminate, you will be 100% vested in all of your account
balances.
NO CONTRACT OF EMPLOYMENT
This Plan is not a contract of employment between Fort Howard and any person,
nor does it give any person a right to continue in the employment of
Fort Howard or limit in any way the right of Fort Howard to discharge any
person at any time, with or without notice and with or without cause, which
right is hereby reserved.
ASSIGNMENT OF BENEFITS
Except as may be required by the tax withholding provisions of the Internal
Revenue Code or any state's income tax act, or by a qualified domestic
relations order, your accounts under the Plan are not subject to the claims of
your creditors and cannot be assigned in any way or used as collateral.
YOUR RIGHTS UNDER ERISA
- -----------------------
As a participant in the Plan, you are entitled to certain rights and
protections under the Employee Retirement Income Security Act of 1974 (ERISA).
ERISA provides that all Plan participants shall be entitled to:
Examine, without charge, at the Plan Administrator's office, all Plan
documents and copies of all documents filed by the Plan with the U.S.
Department of Labor, such as annual reports and Plan descriptions.
Obtain copies of all Plan documents and other Plan information upon
written request to the Investment Advisory Board. The Investment
Advisory Board may make a reasonable charge for the copies.
Receive a summary of the Plan's annual financial report. The Investment
Advisory Board is required by law to furnish each participant with a
copy of this summary annual report.
Obtain a statement of your vested accounts under the Plan. If you do
not have vested rights, the statement will tell you how many years you
have to work to have vested rights. This statement must be requested in
writing and is not required to be given more than once a year. The Plan
must provide the statement free of charge.
In addition to creating rights for Plan participants, ERISA imposes duties
upon the persons who are responsible for the operation of the Plan. The
persons who operate your Plan, called "fiduciaries" of the Plan, have a duty
to do so prudently and in the interest of you and other Plan participants and
beneficiaries. No one, including your employer or any other person, may fire
you or otherwise discriminate against you in any way to prevent you from
obtaining a retirement benefit or exercising your rights under ERISA. If your
claim for a retirement benefit is denied in whole or in part, you must receive
a written explanation of the reason for the denial. You have a right to have
the Plan review and reconsider your claim.
- 19 -
Under ERISA, there are steps you can take to enforce the above rights. For
instance, if you request materials from the Plan and do not receive them
within 30 days, you may file suit in federal court. In such a case, the court
may require the Investment Advisory Board to provide the materials and pay you
up to $100 a day until you receive the materials, unless the materials were
not sent because of reasons beyond the control of the Investment Advisory
Board. If you have a claim for benefits which is denied or ignored, in whole
or in part, you may file suit in a state or federal court. If it should
happen that the Plan fiduciaries misuse the Plan's money, or if you are
discriminated against for asserting your rights, you may seek assistance from
the U.S. Department of Labor or you may file suit in federal court. The court
will decide who should pay court costs and legal fees. If you are successful,
the court may order the person you have sued to pay these costs and fees. If
you lose, the court may order you to pay these costs and fees, for example, if
it finds your claim is frivolous.
If you have any questions about the Plan, you should contact the Investment
Advisory Board. If you have any questions about this statement or about your
rights under ERISA, you can contact the nearest area Office of the U.S. Labor-
Management Services Administration, Department of Labor.
- 20 -
Exhibit 23
----------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January 31,
1995, included in Fort Howard Corporation's Form 10-K for the year ended
December 31, 1994, and our report dated May 11, 1995, included in Fort Howard
Corporation's Form 11-K for the year ended December 31, 1994, and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
December 27, 1995.
