SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 11-K
Annual Report Pursuant to Section 15(d)
of the Securities Exchange Act of 1934
For the year ended December 31, 1993
Commission file number 1-7911
A. Full title of the plan and the address of the plan,
if different from that of the issuer named below:
JAMES RIVER CORPORATION OF VIRGINIA
STOCK PURCHASE PLAN
B. Name of issuer of the securities held pursuant to the
plan and the address of its principal executive office:
JAMES RIVER CORPORATION OF VIRGINIA
120 Tredegar Street, Richmond, Virginia 23219
JAMES RIVER CORPORATION OF VIRGINIA
STOCK PURCHASE PLAN
INDEX TO FINANCIAL STATEMENTS, SUPPLEMENTAL SCHEDULES, AND EXHIBITS
__________
Pages
Report of independent accountants 3
Financial statements:
Statements of net assets available for benefits,
with fund information as of December 31, 1993 and
1992 4-5
Statement of changes in net assets available for
benefits, with fund information for the year
ended December 31, 1993 6
Notes to financial statements 7-15
Supplemental schedules:
Assets held for investment purposes as of December
31, 1993 16
Party-in-interest transactions for the year ended
December 31, 1993 *
Obligations in default for the year ended December
31, 1993 *
Leases in default for the year ended December 31,
1993 *
Reportable transactions for the year ended December
31, 1993 17
Exhibits to Annual Report on Form 11-K 18
Signatures 19
__________
* There were no such transactions during the period specified.
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
James River Corporation of Virginia:
We have audited the accompanying statements of net assets available for
benefits, with fund information, of the James River Corporation of
Virginia Stock Purchase Plan (the "Plan") as of December 31, 1993 and
1992, and the related statement of changes in net assets available for
benefits, with fund information, for the year ended December 31, 1993.
These financial statements are the responsibility of the Plan's
management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well
as evaluating the overall financial statement presentation. We believe
that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the net assets available for
benefits, with fund information, of the Plan as of December 31, 1993
and 1992, and the changes in net assets available for benefits, with
fund information, for the year ended December 31, 1993, in conformity
with generally accepted accounting principles.
Our audits were performed for the purpose of forming an opinion on the
basic financial statements taken as a whole. The supplemental
schedules of assets held for investment purposes as of December 31,
1993 and reportable transactions for the year ended December 31, 1993
are presented for the purpose of additional analysis and are not a
required part of the basic financial statements but are supplementary
information required by the Department of Labor's Rules and Regulations
for Reporting and Disclosure under the Employee Retirement Income
Security Act of 1974. The fund information in the statements of net
assets available for benefits, with fund information, and the statement
of changes in net assets available for benefits, with fund information,
is presented for purposes of additional analysis rather than to present
the net assets available for benefits and changes in net assets
available for benefits of each fund. The supplemental schedules and
fund information have been subjected to the auditing procedures applied
in the audits of the basic financial statements and, in our opinion,
are fairly stated in all material respects in relation to the basic
financial statements taken as a whole.
COOPERS & LYBRAND
Richmond, Virginia
June 20, 1994
<TABLE>
JAMES RIVER CORPORATION OF VIRGINIA STOCK PURCHASE PLAN
STATEMENT OF NET ASSETS AVAILABLE FOR BENEFITS, WITH FUND INFORMATION
December 31, 1993
<CAPTION>
Fund Information
James River Fixed
Common Stock Income
Investment Investment Loans to
ASSETS Fund Fund Participants Total
<S> <C> <C> <C> <C>
Cash equivalents $4,001,866 $945,097 $4,946,963
Accrued interest receivable 3,477 50,644 54,121
Investments, at fair value:
Investment in Common Stock 245,385,352 245,385,352
Investment in guaranteed interest 1,795,247 1,795,247
contracts
Investment in common trust fund 7,499,531 7,499,531
Loans receivable from participants 522,035 $13,771,253 14,293,288
Total investments 245,907,387 9,294,778 13,771,253 268,973,418
Total assets 249,912,730 10,290,519 13,771,253 273,974,502
LIABILITIES
Due to participants for loans 457,135 (457,135 ) 0
Fund transfers in transit 178,293 (178,293) 0
Other liabilities 897,831 897,831
Total liabilities 1,533,259 (178,293) (457,135) 897,831
Net assets available for benefits $248,379,471 $10,468,812 $14,228,388 $273,076,671
The accompanying notes are an integral part of these financial statements.
</TABLE>
<TABLE>
JAMES RIVER CORPORATION OF VIRGINIA STOCK PURCHASE PLAN
STATEMENT OF NET ASSETS AVAILABLE FOR BENEFITS, WITH FUND INFORMATION
December 31, 1992
<CAPTION>
Fund Information
James River Fixed
Common Stock Income
Investment Investment Loans to
ASSETS Fund Fund Participants Total
<S> <C> <C> <C> <C>
Cash equivalents $3,786,540 $34,311 $3,820,851
Accrued interest receivable 3,815 58,425 62,240
Investments, at fair value:
Investment in Common Stock 216,227,778 216,227,778
Investment in guaranteed interest 3,578,087 3,578,087
contracts
Investment in common trust fund 5,816,207 5,816,207
Loans receivable from participants 378,195 $11,097,514 11,475,709
Total investments 216,605,973 9,394,294 11,097,514 237,097,781
Total assets 220,396,328 9,487,030 11,097,514 240,980,872
LIABILITIES
Accounts payable for purchases of 2,013,876 2,013,876
Common Stock
Due to participants for loans 318,395 (318,395) 0
Payable to participants for withdrawals 2,028,355 340,976 50,969 2,420,300
Fund transfers in transit 122,723 (122,723) 0
Other liabilities 825,600 825,600
Total liabilities 5,308,949 218,253 (267,426) 5,259,776
Net assets available for benefits $215,087,379 $9,268,777 $11,364,940 $235,721,096
The accompanying notes are an integral part of these financial statements.
</TABLE>
<TABLE>
JAMES RIVER CORPORATION OF VIRGINIA STOCK PURCHASE PLAN
STATEMENT OF CHANGES IN NET ASSETS AVAILABLE FOR BENEFITS, WITH FUND INFORMATION
for the year ended December 31, 1993
<CAPTION>
Fund Information
James River Fixed
Common Stock Income Loans to
Investment Investment Participants Total
Fund Fund
<S> <C> <C> <C> <C>
Additions to net assets attributable to:
Investment income:
Cash dividends on Common Stock $7,380,527 $7,380,527
Interest on guaranteed investment $229,674 229,674
contracts
Interest on common trust fund 413,876 413,876
Interest on cash equivalents 35,072 2,644 37,716
Interest on loans to participants 821,409 821,409
Total investment income 8,237,008 646,194 8,883,202
Net appreciation in fair value of investment 8,402,697 8,402,697
in Common Stock
Contributions and deposits:
Deposits by participating employees 30,184,655 30,184,655
Contributions by employer, before 16,435,771 16,435,771
reduction for forfeitures
Refund of contributions related to highly (977,279) (22,655) (999,934)
compensated employees
Total contributions and deposits 45,643,147 (22,655) 45,620,492
Total additions 62,282,852 623,539 62,906,391
Deductions from net assets attributable to:
Distributions to participants (23,057,400) (1,984,248) $(384,949) (25,426,597)
Forfeitures (65,852) (65,852)
Administrative costs (3,361) (3,361)
Transfers to other plans (8,617) (46,389) (55,006)
Total deductions (23,131,869) (1,987,609) (431,338) (25,550,816)
Net increase (decrease) prior to interfund 39,150,983 (1,364,070) (431,338) 37,355,575
transfers
Transfers between funds:
Transfers between investment funds (2,581,421) 2,581,421 0
Loans to participants (8,324,519) (17,316) 8,341,835 0
Loan repayments 5,047,049 (5,047,049) 0
Total transfers between funds (5,858,891) 2,564,105 3,294,786 0
Net increase in net assets available for 33,292,092 1,200,035 2,863,448 37,355,575
benefits
Net assets available for benefits:
Beginning of year 215,087,379 9,268,777 11,364,940 235,721,096
End of year $248,379,471 $10,468,812 $14,228,388 $273,076,671
The accompanying notes are an integral part of these financial statements.
</TABLE>
JAMES RIVER CORPORATION OF VIRGINIA
STOCK PURCHASE PLAN
NOTES TO FINANCIAL STATEMENTS
1. Description of the Plan:
(a) General
The following description of the James River Corporation of
Virginia ("James River," the "Company," or the "Employer")
Stock Purchase Plan (the "Plan") provides only general
information on the Plan in effect as of December 31, 1993.
Participants should refer to the Plan agreement for a more
complete description of the Plan's provisions. The Plan is a
stock purchase plan for employees of James River and its
domestic subsidiaries who have 30 days of service, are age
eighteen or older, and elect to participate in the Plan
("Participant"). The Plan is subject to the provisions of
the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
(b) Contributions
Participants may elect to contribute, through payroll
deductions, from 1% to 10% of their earnings to purchase
James River common stock, $.10 par value ("Common Stock").
Participants may elect to make contributions to the Plan (i)
on a non-tax-deferred basis, (ii) in the form of salary
reduction contributions, or (iii) under a combination of both
methods. Salary reduction contributions meet the
requirements of Section 401(k) of the Internal Revenue Code
of 1986, as amended (the "Internal Revenue Code").
The Company contributes an amount equal to the following
matching percentages on behalf of each Participant:
Total Participant's Non-Tax-Deferred Company Contributions as a Percentage
and Salary Reduction Contributions of Participant's Contributions
as a Percentage of Compensation Non-Tax-Deferred Salary Reduction
1% of Compensation 100% 110%
2% of Compensation 65% 75%
3% to 6% of Compensation 50% 60%
The Company makes no matching contribution with respect to
the portion of a Participant's non-tax-deferred and salary
reduction contributions that, in the aggregate, exceeds 6% of
the Participant's compensation. The Participant designates
which portion of his contribution is a non-tax-deferred
contribution and which portion is a salary reduction
contribution.
(c) Vesting
Each Participant is fully vested in his salary reduction, non-
tax-deferred, and rollover contributions at all times, as
well as in Company matching contributions made with respect
to a Participant's salary reduction contributions. Company
matching contributions made with respect to non-tax-deferred
contributions vest after a Participant has made contributions
for 24 months and thereafter are fully vested at all times.
Dividends and any other earnings of the James River Common
Stock Investment Fund allocated to a Participant vest at the
same time as the underlying shares of Common Stock.
(d) Investment Options
A Participant who reaches age 59-1/2 may elect to transfer all
or part (in 10% increments) of his vested interest in the
Plan from the James River Common Stock Investment Fund to the
Fixed Income Investment Fund. Earnings of the Fixed Income
Investment Fund are allocated to all Participants with
accounts in this fund.
Participants may transfer certain assets previously held
under another tax-qualified plan into the Plan. Such assets
are held in either a salary reduction rollover account, non-
tax-deferred rollover account, or employer contribution
rollover account as defined in the Plan. Participants may
also elect to have certain distributions transferred out of
the Plan and paid directly to an eligible tax-qualified plan.
(e) Participant Loans
Participants are permitted to borrow from the Plan amounts up
to one-half of the Participants' vested interest, subject to
a minimum of $1,000 and a maximum of $50,000. For accounting
purposes, Plan assets attributable to a Participant's
individual account will be liquidated to provide the funds to
be loaned (see Note 2(e)). Loans are repayable over a period
of up to five years, except for loans to purchase a primary
residence, which may be repaid over a period of up to ten
years. Loans bear interest at the prime rate in effect on
the first day of the month in which the loan application is
received, and all interest paid by a Participant is credited
to his account. Principal and interest payments on loans are
allocated to the James River Common Stock Investment Fund.
As of December 31, 1993, there were 3,926 Participants with
outstanding loans.
(f) Distributions
Distributions are recorded when paid. With limited
exceptions, withdrawals may be made as of the end of any
month from a Participant's account attributable to non-tax-
deferred contributions, non-tax-deferred rollover
contributions, and the vested portion of the Company matching
contributions with respect thereto. Such withdrawals are
payable in whole shares of Common Stock, with the value of
fractional shares paid in cash, or entirely in cash. Prior
to July 1, 1984, Participants were permitted to borrow funds
from the Company based on their participation in the Plan. A
Participant's withdrawal or partial withdrawal from the Plan
will cause the pre-1984 Company loan or a pro-rata portion of
the loan to become due and payable. Such loans are not
assets of the Plan.
A participant who reaches age 59-1/2 may elect a one-time
withdrawal including salary reduction contributions and the
matching contributions made with respect thereto.
Participants who have not attained age 59-1/2 can only access
these contributions in the event of financial hardship.
A Participant who separates from employment is generally
entitled to a full distribution. In certain circumstances, a
Participant may defer distribution to a later date.
(g) Anti-Discrimination Requirements
The Plan is required to meet the anti-discrimination
requirements for highly compensated employees as set forth in
Section 401(k) of the Internal Revenue Code. For years in
which the Plan does not meet these requirements, the
provisions of the Plan require that a refund of employee
contributions be made to highly compensated employees within
two and one-half months after the close of the Plan year (see
Note 8(a)). Refunds made during the Plan year ended December
31, 1993 have been reflected as a reduction of contributions
and deposits on the statement of changes in net assets
available for benefits, with fund information.
(h) Number of Participants
There were 22,259 and 23,317 Participants in the Plan as of
December 31, 1993 and 1992, respectively. The number of
Participants investing in each of the Plan's funds as of
those dates was as follows (Participants may be included in
more than one fund, as applicable):
1993 1992
James River Common Stock Investment 22,259 23,110
Fund
Fixed Income Investment Fund 394 406
(i) Transfers to Other Plans
These amounts represent account balances transferred to other
plans on behalf of employees of a facility sold by James
River during 1993.
2. Summary of Significant Accounting Policies:
(a) Basis of Accounting
The financial statements of the Plan are prepared under the
accrual method of accounting.
(b) Cash Equivalents
All deposits of contributions to the Plan are initially
invested in an interest-bearing account pending their
investment in Common Stock. Interest earned on such
investments is credited to the individual Participant's
accounts. Cash equivalents are stated at cost which
approximates market value.
(c) Investment Valuation
The investment in Common Stock is stated at market value,
based on the closing price of the Common Stock on the New
York Stock Exchange Composite Tape on the last trading day of
the period. The number of shares of Common Stock held by the
Plan was 12,747,291 and 11,687,988 on December 31, 1993 and
1992, respectively. The closing market price per share of
the Common Stock was $19.25 and $18.50 on December 31, 1993
and 1992, respectively.
Prior to July 1, 1990, contributions to the Fixed Income
Investment Fund of the Plan were invested in flexible deposit
guaranteed investment contracts. As of December 31, 1993,
these assets were maintained in the Pan American Life
Insurance Company guaranteed interest contract deposit
agreement (the "Pan American Contract"). This agreement
guarantees an interest rate of 8.9% until July 1, 1994, at
which time all assets will be rolled into the T. Rowe Price
Managed GIC Common Trust Fund (the "T. Rowe Price Contract")
by the Plan.
Since July 1, 1990, all contributions to the Fixed Income
Investment Fund have been invested in the T. Rowe Price
Contract. This investment contract earns interest based on
the average interest rate of a managed pool of guaranteed
investment contracts of various insurance companies. There
is no specified termination date of this contract; however, a
total Plan withdrawal from this investment contract requires
a 12-month waiting period before a complete distribution of
funds may occur.
The Pan American Contract is reported at contract value.
Contract value represents contributions made under the
contract, plus earnings, less Plan withdrawals. The T. Rowe
Price Contract is reported at fair value. The fair value of
the Plan's investment in the T. Rowe Price Contract is
determined by T. Rowe Price, based on the fair values of the
underlying assets of the fund. Fair value, as reported by T.
Rowe Price, after considering the overall strength of the
contract issuers, the nature and duration of restrictions on
participating trust withdrawals, and comparative yields, is a
reasonable approximation of contract value.
Loans receivable from Participants are valued at the balance
of amounts due from Participants, plus accrued interest
thereon, which approximates fair value.
As of December 31, 1993, the assets of the plan were held
under an Agreement of Trust with NationsBank of Virginia,
N.A., Richmond, Virginia (the "Trustee"). Hewitt Associates,
Atlanta, Georgia, serves as recordkeeper for the Plan.
(d) Security Transactions and Related Investment Income
Security transactions are accounted for as of the trade date,
and dividend income is recorded as of the dividend record
date. The cost of securities sold is determined on an
average-cost basis.
(e) Realized Gains (Losses) on Common Stock
When a Participant (i) borrows funds, (ii) makes a transfer
between funds, or (iii) receives a distribution from his
account, current cash contributions to the Plan are used to
provide the funds to be distributed or transferred. For
accounting purposes, the historical cost basis of shares
which would have been sold by the Plan to provide funds for
the borrowing, transfer, or distribution is deducted from the
account of that Participant, and the value of such shares is
reallocated to the current Participants' contributions.
Accordingly, the Plan realizes a gain or loss for the
difference between the historical cost basis of shares which
would have been sold and the fair value of such shares on the
distribution date.
(f) Contributions and Deposits
Employee contributions are recorded as of the date the
contributions are withheld from employees' compensation.
Employer contributions are based on amounts withheld from
participating employees' wages and are therefore recorded as
of the date the employees' contributions are withheld. Funds
are transferred to the Trustee promptly after the date
withheld for employee contributions and once a week for
employer contributions.
(g) Withdrawals and Forfeitures
Withdrawals from the Plan by Participants are presented at
the fair value of the distributed investments, plus cash paid
in lieu of fractional shares where applicable. Forfeitures
of the non-vested portion of the Company's matching
contributions are applied to offset current contributions
required to be made by the Employer.
(h) Net Appreciation in Fair Value of Investment in Common Stock
Net appreciation in the fair value of the investment in
Common Stock consists of (i) unrealized appreciation or
depreciation of investments held by the Plan, (ii) realized
gains or losses on the sale of Common Stock (see Note 2(e)),
and (iii) unrealized appreciation or depreciation of
investments distributed to Participants.
(i) Reclassifications
Certain amounts in the prior year's financial statements have
been reclassified to conform to the current year's
presentation.
3. Plan Termination:
Although it has not expressed any intent to do so, the Company has
the right under the Plan to discontinue its contributions at any
time and to terminate the Plan subject to the provisions of ERISA.
In the event of Plan termination, participants will become 100
percent vested in their accounts.
4. Reconciliation of Financial Statements to Form 5500:
Beginning in 1993, the Plan changed its method of accounting for
distributions that have been processed and approved for payment
prior to December 31, 1993, but not yet paid as of that date. In
accordance with authoritative literature, such distributions,
which were not material, have been excluded in the determination
of net assets available for benefits and distributions to
Participants.
The following is a reconciliation of net assets available for
benefits per the financial statements to the Form 5500 filed for
the Plan:
December 31, 1993
Net assets available for benefits per
the financial statements $273,076,671
Amounts allocated to withdrawing Participants (4,636,814)
Net assets available for benefits per
the Form 5500 $268,439,857
The following is a reconciliation of distributions to Participants
per the financial statements to the Form 5500 filed for the Plan:
Year Ended
December 31, 1993
Distributions to Participants per
the financial statements $25,426,597
Amounts allocated to withdrawing Participants
as of December 31, 1993 4,636,814
Distributions to Participants per
the Form 5500 $30,063,411
5. Tax Status:
The Internal Revenue Service has issued a favorable determination
letter with respect to the qualification of the Plan under Section
401(a) of the Internal Revenue Code. The Plan has been amended
after receipt of the determination letter. The Plan administrator
and the Plan's tax counsel believe that the Plan is designed to
comply with the applicable requirements of the Internal Revenue
Code.
6. Administration Expenses:
Substantially all expenses of administering the Plan are borne by
James River, and no charge is made to the Plan with respect
thereto. Administrative expenses related to the Pan American and
the T. Rowe Price contracts are paid by the Plan.
7. Concentration of Credit Risk:
Financial instruments which potentially subject the Plan to
concentrations of credit risk consist of temporary cash
investments held by the Trustee in excess of the Federal Deposit
Insurance Corporation insurance limit; the Pan American Contract;
and the T. Rowe Price Contract. The Plan has no formal policy
requiring collateral to support the financial instruments subject
to credit risk.
8. Subsequent Events:
(a) Refund of Contributions Related To Highly Compensated
Employees
In order to meet the anti-discrimination test pursuant to
Section 401(k) of the Internal Revenue Code, a refund of
$249,265 of employee contributions was made to highly
compensated employees during 1994 with respect to the 1993
Plan year in accordance with Plan provisions.
(b) Amendment and Restatement of the Plan
Subsequent to December 31, 1993, the Plan was amended and
restated effective July 1, 1994. The name of the Plan was
changed to the James River Corporation of Virginia StockPlus
Investment Plan (the "StockPlus Plan"). The Company has
appointed The Bank of New York to serve as trustee and Wyatt
Asset Services, Inc. to serve as recordkeeper for the
StockPlus Plan.
Employees who are eligible to participate in the Plan
immediately before July 1, 1994 will be eligible to
participate in the StockPlus Plan. Participants in the
StockPlus Plan may elect to contribute from 1% to 10% of
their compensation to the StockPlus Plan through payroll
deductions; all contributions will be made as before-tax
contributions under Section 401(k) of the Internal Revenue
Code. Contributions will be invested by The Bank of New
York into investment funds, as discussed below, at the
direction of the Participant. Before-tax contributions made
by Participants who have not reached age 57 must be invested
in the James River Stock Fund, as hereinafter defined, in
order to receive matching contributions from the Company
pursuant to the following schedule:
Participant Contribution Company Contribution
as a Percentage as a Percentage of
of Compensation Participant's Total Contribution
1% 120%
2% 100%
3% 90%
4% 80%
5% 70%
6% 60%
The Company will make no matching contributions with respect
to the portion of a Participant's contributions that exceeds
6% of the Participant's compensation.
The following investment funds have been established for the
investment of StockPlus Plan assets: (i) an investment fund
consisting primarily of Common Stock (the "James River Stock
Fund"), (ii) the Fidelity Balanced Fund, (iii) the IDS New
Dimensions Fund, (iv) the Stagecoach Inc. S&P 500 Stock Fund,
(v) the Pierpont Bond Fund, and (vi) the Pierpont Money
Market Fund. In addition, the T. Rowe Price Fixed Income
Fund, which was maintained under the Plan, will continue
until July 1995. Participants have the right to direct the
investment of certain of their StockPlus Plan accounts and
contributions into any of the available investment funds, as
described below.
A Participant who has not attained age 57 may elect to invest
in any of the available investment funds the Participant's
before-tax contributions made on or after July 1, 1994 that
are not matched by Company contributions. Before-tax
contributions of up to 6% of a Participant's compensation
that are made on or after July 1, 1994 and that are invested
in the James River Stock Fund will be matched. These
contributions must remain in that fund until the earlier of
(i) the date on which they have been held in the StockPlus
Plan for 24 months or (ii) the date on which the Participant
attains age 57. Matching contributions that are made on or
after July 1, 1994 will be invested in the James River Stock
Fund and must remain in that fund until the Participant
attains age 57. Subject to certain exceptions, contributions
made to the Plan before July 1, 1994 must remain invested in
the James River Stock Fund until the Participant attains age
57.
Participants who have attained age 57 may direct the
investment of all their contributions and accounts, including
matching contributions, into any of the StockPlus Plan's
available investment funds.
Participants will be permitted to borrow from the StockPlus
Plan under provisions which are similar to the loan
provisions of the Plan. The minimum loan amount is $1,000,
and the maximum loan amount is the lesser of $50,000 or one-
half of a Participant's balance. Interest will be charged on
loans at the prime rate in effect on the first day of the
month in which the loan application is received plus 1%.
Effective July 1, 1994, all Participants are 100% vested in
their StockPlus Plan accounts. A Participant may request a
non-hardship withdrawal of his accounts attributable to after-
tax contributions, after-tax matching contributions, and
rollover account. Withdrawals may only be made from a
Participant's other accounts in the event of financial
hardship, unless the Participant has reached age 59-1/2, in
which case a one-time withdrawal may be made of a
Participant's entire account.
Also effective July 1, 1994, the James River II Salaried
Employees Retirement Savings Plan (the "JRII Plan") will be
merged into the StockPlus Plan. Contributions to the JRII
Plan were frozen in 1986. Persons who have accounts in the
JRII Plan immediately before July 1, 1994 are referred to as
"Former JR II Employees." A Former JRII Employee may invest
in any of the available investment funds the portion of his
before-tax and after-tax contributions that is attributable
to assets transferred from the JRII Plan. Subject to certain
exceptions, other accounts transferred from the JRII Plan
shall be invested according to the rules in effect for
contributions made to the JRII Plan before July 1, 1994. The
Executive Life Insurance Company Fixed Income Fund, which was
maintained under the JRII Plan, is considered a frozen
investment fund, and no amounts may be contributed to or
transferred to that investment fund. No transfers, loans,
withdrawals, or distributions may be made from the Executive
Life Insurance Company Fixed Income Fund.
JAMES RIVER CORPORATION OF VIRGINIA STOCK PURCHASE PLAN
ITEM 27(a) - SCHEDULE OF ASSETS HELD FOR INVESTMENT PURPOSES
December 31, 1993
Identity of Issue Description of Investment Cost Current
Value
James River 12,747,291 shares $294,141,761 $245,385,352
Corporation of
Virginia Common
Stock, $.10 par
value
T. Rowe Price Managed GIC Common Trust 7,499,531 7,499,531
Fund; interest rate --
average of managed pool;
maturity date -- no
specific date
Pan American Life Guaranteed interest 1,795,247 1,795,247
Insurance Company contract deposit
agreement; interest rate
-- 8.9%; maturity date --
July 1, 1994
Participant loans Interest rate -- 6% to -- 14,293,288
11.5%; various maturity
dates
<TABLE>
JAMES RIVER CORPORATION OF VIRGINIA STOCK PURCHASE PLAN
ITEM 27(d) - SCHEDULE OF REPORTABLE TRANSACTIONS
for the year ended December 31, 1993
Identity of Party Expense
Involved/Description Number of Incurred
of Asset Purchase Selling Transactions with Cost Net Gain
Price Price Transactions (Loss)
<S> <C> <C> <C> <C> <C> <C>
James River $42,527,735 -- 42 $107,545 $42,527,735 --
Corporation of
Virginia Common Stock
Nations Prime 44,684,558 -- 73 -- 44,684,558 --
Portfolio Trust A
Shares
Nations Prime -- $44,469,232 72 -- 44,469,232 --
Portfolio Trust A
Shares
</TABLE>
EXHIBITS TO ANNUAL REPORT ON FORM 11-K
The exhibits listed below are filed as part of this Annual Report on
Form 11-K. Each exhibit is listed according to the number assigned to
it in the Exhibit Table of Item 601 of Regulation S-K.
Exhibit
Number Description
4(a) James River Corporation of Virginia Stock Purchase Plan,
amended and restated effective as of January 1, 1987
(incorporated by reference to Exhibit 4 to James River's
Registration Statement on Form S-8 (File No. 33-12778),
dated March 20, 1987).
4(b) Amendment to the James River Corporation of Virginia Stock
Purchase Plan, dated October 9, 1987 (incorporated by
reference to Exhibit 4(b) to the James River Corporation of
Virginia Stock Purchase Plan Annual Report on Form 11-K for
the year ended December 31, 1987).
4(c) Amendments to the James River Corporation of Virginia Stock
Purchase Plan, dated August 1, 1988, December 1, 1988, and
December 19, 1988 (incorporated by reference to Exhibits
4(c), 4(d), and 4(e), respectively, to the James River
Corporation of Virginia Stock Purchase Plan Annual Report on
Form 11-K for the year ended December 31, 1988).
4(d) Amendment to the James River Corporation of Virginia Stock
Purchase Plan, dated November 15, 1989 (incorporated by
reference to Exhibit 4(b) to the James River Corporation of
Virginia Stock Purchase Plan Annual Report on Form 11-K for
the year ended December 31, 1989).
4(e) Amendment to the James River Corporation of Virginia Stock
Purchase Plan, dated April 1, 1990 (incorporated by reference
to Exhibit 4(b) to the James River Corporation of Virginia
Stock Purchase Plan Annual Report on Form 11-K for the year
ended December 31, 1990).
4(f) Amendment to the James River Corporation of Virginia Stock
Purchase Plan, dated June 15, 1991 (incorporated by reference
to Exhibit 4(f) to the James River Corporation of Virginia
Stock Purchase Plan Annual Report on Form 11-K for the year
ended December 31, 1991).
4(g) Amendments to the James River Corporation of Virginia Stock
Purchase Plan, dated January 4, 1993 and July 1, 1993
(incorporated by reference to Exhibits 4(g) and 4(h),
respectively, to the James River Corporation of Virginia
Stock Purchase Plan Annual Report on Form 11-K for the year
ended December 31, 1992).
4(h) James River Corporation of Virginia StockPlus Investment
Plan, amended and restated effective July 1, 1994 -- filed
herewith.
23 Consent of Independent Accountants -- filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the members of the Committee which administers the Plan have duly
caused this annual report to be signed by the undersigned hereunto duly
authorized.
JAMES RIVER CORPORATION OF VIRGINIA
STOCK PURCHASE PLAN
June 20, 1994 /s/Michael J. Allan
Committee Member - Michael J. Allan
June 20, 1994 /s/Joseph L. Fischer
Committee Member - Joseph L. Fischer
June 20, 1994 /s/Daniel J. Girvan
Committee Member - Daniel J. Girvan
June 19, 1994 /s/Stephen E. Hare
Committee Member - Stephen E. Hare
June 19, 1994 /s/Joseph T. Piemont
Committee Member - Joseph T. Piemont
June 20, 1994 /s/Robert C. Williams
Committee Member (Chairman) - Robert C. Williams
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of James River Corporation of Virginia on Form S-8 (File No.
33-50284) of our report dated June 20, 1994, on our audits of the
financial statements of the James River Corporation of Virginia Stock
Purchase Plan as of December 31, 1993 and 1992, and for the year ended
December 31, 1993, which report is included in this Annual Report on
Form 11-K.
COOPERS & LYBRAND
Richmond, Virginia
June 27, 1994
Exhibit 4(h)
JAMES RIVER CORPORATION OF VIRGINIA
STOCKPLUS INVESTMENT PLAN
Amended and Restated Effective July 1, 1994
<PAGE>
TABLE OF CONTENTS
Page
SECTION I
ESTABLISHMENT OF THE STOCKPLUS INVESTMENT PLAN . . . . . . 1
SECTION II
DEFINITIONS. . . . . . . . . . . . . . . 2
2.1 Account . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Affiliated Company. . . . . . . . . . . . . . . . . . . 2
2.3 Before-Tax Contributions. . . . . . . . . . . . . . . . 2
2.4 Beneficiary . . . . . . . . . . . . . . . . . . . . . . 2
2.5 Board . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Canadian Employee . . . . . . . . . . . . . . . . . . . 3
2.7 Company . . . . . . . . . . . . . . . . . . . . . . . . 3
2.8 Company Stock . . . . . . . . . . . . . . . . . . . . . 3
2.9 Company Stock Fund. . . . . . . . . . . . . . . . . . . 3
2.10 Compensation. . . . . . . . . . . . . . . . . . . . . . 3
2.11 Effective Date. . . . . . . . . . . . . . . . . . . . . 4
2.12 Employee. . . . . . . . . . . . . . . . . . . . . . . . 4
2.13 Employer or Employers . . . . . . . . . . . . . . . . . 4
2.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.15 Highly Compensated Employee . . . . . . . . . . . . . . 4
2.17 Insider . . . . . . . . . . . . . . . . . . . . . . . . 5
2.18 Internal Revenue Code . . . . . . . . . . . . . . . . . 5
2.19 Leave of Absence. . . . . . . . . . . . . . . . . . . . 5
2.20 Matching Contributions. . . . . . . . . . . . . . . . . 5
2.21 Participant . . . . . . . . . . . . . . . . . . . . . . 5
2.22 Permanent Disability. . . . . . . . . . . . . . . . . . 5
2.23 Plan. . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.24 Plan Administrator. . . . . . . . . . . . . . . . . . . 6
2.25 Plan Year . . . . . . . . . . . . . . . . . . . . . . . 6
2.26 Prior Plan. . . . . . . . . . . . . . . . . . . . . . . 6
2.27 Retirement Date . . . . . . . . . . . . . . . . . . . . 6
2.28 Rule 16b-3. . . . . . . . . . . . . . . . . . . . . . . 6
2.29 Service . . . . . . . . . . . . . . . . . . . . . . . . 6
2.30 Taxable Compensation. . . . . . . . . . . . . . . . . . 7
2.31 Trust Agreement . . . . . . . . . . . . . . . . . . . . 7
2.32 Trustee . . . . . . . . . . . . . . . . . . . . . . . . 8
2.33 Trust Fund. . . . . . . . . . . . . . . . . . . . . . . 8
2.34 Valuation Date. . . . . . . . . . . . . . . . . . . . . 8
SECTION III
PARTICIPATION . . . . . . . . . . . . . . 9
3.1 Participation in the Salary Reduction Plan. . . . . . . 9
3.2 Application for Participation . . . . . . . . . . . . . 9
3.3 Duration of Participation; Reemployment . . . . . . . . 10
SECTION IV
CONTRIBUTIONS . . . . . . . . . . . . . . 11
4.1 Before-Tax Contributions. . . . . . . . . . . . . . . . 11
4.2 Matching Contributions. . . . . . . . . . . . . . . . . 11
4.3 Elections as to Contributions; Changes. . . . . . . . . 12
4.4 Time and Manner of Payment of
Contributions . . . . . . . . . . . . . . . . . . . . . 13
SECTION V
ACCOUNTS. . . . . . . . . . . . . . . . 14
5.1 Participants' Accounts. . . . . . . . . . . . . . . . . 14
5.2 Allocation of Contributions . . . . . . . . . . . . . . 14
5.3 Annual Addition and Benefit Limitations . . . . . . . . 14
5.4 Anti-Discrimination Test for Before-Tax
Contributions . . . . . . . . . . . . . . . . . . . . . 16
5.5 Anti-Discrimination Test for Matching
Contributions.. . . . . . . . . . . . . . . . . . . . . 18
5.6 Highly Compensated Employees. . . . . . . . . . . . . . 20
5.7 Distribution of Excess Contributions. . . . . . . . . . 22
5.8 Correction of Error . . . . . . . . . . . . . . . . . . 23
SECTION VI
VESTING AND DISTRIBUTION OF ACCOUNTS. . . . . . . . . 24
6.1 Vested Interest . . . . . . . . . . . . . . . . . . . . 24
6.2 Distribution Upon Termination of
Employment. . . . . . . . . . . . . . . . . . . . . . 24
6.3 Death . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.4 Form and Time of Payment. . . . . . . . . . . . . . . . 24
6.5 Reemployed Participants . . . . . . . . . . . . . . . . 27
6.6 Benefits to Minors and Incompetents . . . . . . . . . . 28
6.7 Location of Missing Participants. . . . . . . . . . . . 28
6.8 No Guarantee of Values. . . . . . . . . . . . . . . . . 29
6.9 Eligible Rollover Distributions . . . . . . . . . . . . 29
SECTION VII
WITHDRAWALS AND LOANS . . . . . . . . . . . . 31
7.1 Hardship Withdrawals. . . . . . . . . . . . . . . . . . 31
7.2 Withdrawals During Employment . . . . . . . . . . . . . 33
7.3 Withdrawals During Employment by Canadian
Employees . . . . . . . . . . . . . . . . . . . . . . . 34
7.4 Loans . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.5 Outstanding Prior Plan Loans. . . . . . . . . . . . . . 37
7.6 Insiders. . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION VIII
TRUST ARRANGEMENTS . . . . . . . . . . . . . 39
8.1 Appointment of Trustee. . . . . . . . . . . . . . . . . 39
8.2 Appointment of Investment Managers. . . . . . . . . . . 39
SECTION IX
INVESTMENT OF ACCOUNTS . . . . . . . . . . . . 40
9.1 Investment Funds. . . . . . . . . . . . . . . . . . . . 40
9.2 Investment of Accounts by Participants
Under Age 57. . . . . . . . . . . . . . . . . . . . . . 40
9.3 Investment of Accounts by Participants Who
Have Attained Age 57. . . . . . . . . . . . . . . . . . 42
9.4 Directed Investments. . . . . . . . . . . . . . . . . . 42
9.5 Limitations on Directed Investments . . . . . . . . . . 44
9.6 Application to Beneficiaries and Alternate
Payees. . . . . . . . . . . . . . . . . . . . . . . . . 44
9.7 Order of Withdrawals and Loans from the
Investment Funds. . . . . . . . . . . . . . . . . . . . 44
9.8 Limitation on Insiders' Interests in
Company Stock . . . . . . . . . . . . . . . . . . . . . 45
9.9 Voting, Tender and Exercise of Similar
Rights with Respect to Company Stock. . . . . . . . . . 45
9.10 Management of the Company Stock Fund. . . . . . . . . . 46
9.11 Allocation of Income. . . . . . . . . . . . . . . . . . 46
SECTION X
GENERAL PROVISIONS . . . . . . . . . . . . . 47
10.1 Nonalienation of Benefits . . . . . . . . . . . . . . . 47
10.2 Merger or Consolidation . . . . . . . . . . . . . . . . 47
10.3 No Contract of Employment . . . . . . . . . . . . . . . 47
10.4 Non-Reversion . . . . . . . . . . . . . . . . . . . . . 47
10.5 Construction and Severability . . . . . . . . . . . . . 48
10.6 Delegation of Authority . . . . . . . . . . . . . . . . 48
10.7 Changes in Capital Structure. . . . . . . . . . . . . . 48
10.8 Receipt of Rollovers and Trustee-to-Trustee
Transfers . . . . . . . . . . . . . . . . . . . . . . . 48
10.9 Gender and Number . . . . . . . . . . . . . . . . . . . 49
10.10 Plan Merger . . . . . . . . . . . . . . . . . . . . . . 49
SECTION XI
PLAN ADMINISTRATION. . . . . . . . . . . . . 50
11.1 Plan Administrator. . . . . . . . . . . . . . . . . . . 50
11.2 Responsibilities. . . . . . . . . . . . . . . . . . . . 50
11.3 Delegation of Duties. . . . . . . . . . . . . . . . . . 51
11.4 Expenses. . . . . . . . . . . . . . . . . . . . . . . . 51
11.5 Compensation. . . . . . . . . . . . . . . . . . . . . . 52
11.6 Facility of Payment . . . . . . . . . . . . . . . . . . 52
11.7 Benefit Claims Procedure. . . . . . . . . . . . . . . . 52
11.8 Domestic Relations Orders . . . . . . . . . . . . . . . 53
SECTION XII
AMENDMENT OF PLAN . . . . . . . . . . . . . 55
12.1 Reserved Power to Modify, Suspend or
Terminate . . . . . . . . . . . . . . . . . . . . . . . 55
12.2 Amendment Requiring Shareholder Approval. . . . . . . . 55
12.3 Distribution on Termination of Plan . . . . . . . . . . 55
SECTION XIII
ADOPTION OF PLAN BY AFFILIATED COMPANIES. . . . . . . . 56
13.1 Adoption of the Plan. . . . . . . . . . . . . . . . . . 56
13.2 Withdrawal. . . . . . . . . . . . . . . . . . . . . . . 56
13.3 Sale of Employer or Division. . . . . . . . . . . . . . 56
SECTION XIV
TOP HEAVY . . . . . . . . . . . . . . . 57
14.1 Top Heavy . . . . . . . . . . . . . . . . . . . . . . . 57
14.2 Minimum Allocation. . . . . . . . . . . . . . . . . . . 58
14.3 Compensation Limitation . . . . . . . . . . . . . . . . 58
14.4 Benefit and Contribution Limitations. . . . . . . . . . 59
APPENDIX A Merger of the James River II Salaried Employees
Retirement Savings Plan into the StockPlus
Investment Plan
<PAGE>
SECTION I
ESTABLISHMENT OF THE STOCKPLUS INVESTMENT PLAN
James River Corporation of Virginia (the "Company")
maintains the James River Corporation of Virginia Stock Purchase
Plan (the "Plan") for the benefit of its eligible Employees and
the eligible Employees of its Affiliated Companies.
The Company hereby amends and restates the Plan as of July
1, 1994 and changes the name of the Plan to the "James River
Corporation of Virginia StockPlus Investment Plan". The Plan, as
amended and restated, is intended to be a qualified profit
sharing plan under Sections 401(a) and 401(k) of the Internal
Revenue Code. The Plan is also intended, to the extent
permissible, to qualify as a Section 404(c) plan for the purposes
of the Employee Retirement Income Security Act of 1974, as
amended.
<PAGE>
SECTION II
DEFINITIONS
Whenever used in the Plan, the following terms shall have
the meanings set forth below unless otherwise expressly provided:
2.1 Account means a Participant's interest in the Trust
Fund, which shall consist of the Participant's Accounts described
in Section 5.1.
2.2 Affiliated Company means (a) any organization under
common control (as described in Sections 414(b) and (c) of the
Internal Revenue Code) with the Company or (b) any organization
that is a member of an affiliated service group (as described in
Section 414(m) of the Internal Revenue Code) of which the Company
is a member.
2.3 Before-Tax Contributions means contributions made by an
Employer pursuant to Section 4.1.
2.4 Beneficiary means the person or entity who is to
receive any benefits payable from the Plan on account of a
Participant's death, as follows:
(a) If the Participant is married, the Beneficiary is
the Participant's surviving spouse and no written
designation is required. If the Participant is not married,
or if the Participant is married and the spouse consents,
the Beneficiary is the person designated to receive such
benefits.
(b) If, at the time of his death, a Participant has no
spouse or designated Beneficiary, the Beneficiary is the
personal representative of the Participant's estate,
provided that satisfactory evidence of the appointment of a
personal representative is furnished to the Plan
Administrator within 90 days after the Participant's death.
If no such evidence is received by the Plan Administrator,
then the deceased Participant's Beneficiary shall be the
Participant's distributees, as provided by law.
(c) A Participant may designate a person or entity to
be his Beneficiary by filing a properly completed and
executed form for this Plan with the Plan Administrator. If
a plan is merged into this Plan, Beneficiary designations
made with respect to this Plan and the Beneficiary
designation provisions of this Plan shall be controlling and
shall supersede any beneficiary designations made with
respect to the prior plan.
(d) The interpretation of the Plan Administrator with
respect to the designation of a Beneficiary shall be binding
and conclusive upon all parties, and no person who claims to
be a Beneficiary or any other person shall have the right to
question any action of the Plan Administrator that, in the
judgment of the Plan Administrator, fulfills the intent of
the Participant who filed the designation. A Participant's
Beneficiary is bound by the terms of the Plan.
2.5 Board means the Board of Directors of the Company.
2.6 Canadian Employee means an Employee of James River-
Marathon, Ltd., Canada Cup, Inc., or any other Canadian Employer.
2.7 Company means James River Corporation of Virginia and
any successor by merger or otherwise.
2.8 Company Stock means common stock issued by the Company.
2.9 Company Stock Fund means the investment fund maintained
under the Plan for the investment of Participants' Accounts in
shares of Company Stock.
2.10 Compensation means total wages paid or otherwise
payable in cash to an Employee by his Employer during a Plan Year
for personal services, but excluding payments under any
severance, salary continuation or layoff program, bonuses,
director's fees, reimbursement of moving expenses, compensation
received in connection with insurance, stock options or other
benefit plans, and any deferred compensation or other plan or
program of deferred compensation. Compensation shall be
determined as follows:
(a) Notwithstanding the foregoing, salary continuation
payments made on account of a salaried Employee's
termination of employment before July 1, 1994 shall be taken
into account to the extent described in the Prior Plan.
(b) Compensation shall be determined without regard to
any reduction in remuneration resulting from an election to
have Before-Tax Contributions made on an Employee's behalf
pursuant to the Plan.
(c) In the case of an Employee who is employed by two
or more Employers, the Employee's aggregate Compensation
from all Employers shall be deemed to be his Compensation.
Effective for Plan Years beginning after December 31, 1993,
the total amount of annual Compensation taken into account
under the Plan for an Employee may not exceed $150,000, or
an adjusted amount determined pursuant to Sections
401(a)(17) and 415(d) of the Internal Revenue Code.
(d) For purposes of the anti-discrimination tests of
Sections 5.4 and 5.5, "Compensation" means compensation for
services performed for the Employer that is currently
includable in gross income, increased by the Employee's
Before-Tax Contributions, elective contributions under a
cafeteria plan and elective contributions under other
arrangements permitted to be included under Section 414(s)
of the Internal Revenue Code.
2.11 Effective Date means, for the amended and restated
Plan, July 1, 1994. The original effective date of the Plan was
June 29, 1973.
2.12 Employee means a person employed by an Employer, other
than as an independent contractor.
2.13 Employer or Employers means the Company and any
Affiliated Company that adopts the Plan with the consent of the
Board.
2.14 ERISA means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations issued
thereunder.
2.15 Highly Compensated Employee means an Employee described
in Section 5.6.
2.16 Hours of Service means:
(a) Each hour for which an Employee is directly or
indirectly paid, or entitled to payment, by an Employer or
an Affiliated Company for the performance of duties;
(b) Each hour (up to a maximum of 501 hours) for which
an Employee is directly or indirectly paid, or entitled to
payment, by an Employer or an Affiliated Company for reasons
(such as vacation, sickness or disability) other than for
the performance of duties; and
(c) Each hour for which back pay, irrespective of
mitigation of damages, has been either awarded or agreed to
by an Employer or an Affiliated Company.
(d) To the extent required by Federal law, if an
Employee leaves the employ of the Employer to enter the
military service of the United States, and, upon his
discharge from such military service, is reemployed by the
Employer at a time when his reemployment rights are
protected by Federal law, the Employee shall receive credit
for purposes of determining his Hours of Service for the
period during which he would have performed work for the
Employer but for his military service.
Hours of Service under subsection (a) shall be credited to the
12-month period during which the Employee's duties were
performed. Hours of Service under subsections (b) and (c) shall
be credited to the 12-month period to which the payments relate.
Hours of Service for periods of time during which no duties were
performed shall be credited in accordance with Section 2530.200b-
2(b) and (c) of the Department of Labor regulations. In any case
in which employment records do not accurately reflect hours
worked, Hours of Service shall be credited at the rate of 45
Hours of Service per calendar week.
2.17 Insider means a person designated as an insider for
purposes of Section 16 of the Securities Exchange Act of 1934.
2.18 Internal Revenue Code means the Internal Revenue Code
of 1986, as amended, or any subsequently enacted Federal revenue
law. A reference to a particular section of the Internal Revenue
Code shall include a reference to any regulations issued under
the section and to the corresponding section of any subsequently
enacted Federal revenue law.
2.19 Leave of Absence means an Employee's absence without
loss of employment status (regardless of whether Compensation is
paid) if such absence is authorized by his Employer pursuant to
uniformly applied standards because of injury, illness, the
business of the Employer or personal reasons. Leave of Absence
also includes service in the Armed Forces of the United States,
provided that the Employee returns to the employment of an
Employer within the period of time during which his re-employment
rights as a veteran are protected by law.
2.20 Matching Contributions means contributions made by an
Employer pursuant to Section 4.2.
2.21 Participant means any person who is an eligible
Employee described in Section 3.1 and who elects to participate
in the Plan.
2.22 Permanent Disability means a disability that has
rendered a Participant incapable of performing his customary or
other comparable duties for his Employer. No Participant shall
be declared Permanently Disabled unless his condition has existed
for at least six consecutive months. A Participant shall not be
deemed to be disabled if his incapacity arose while he was
participating in a felonious criminal enterprise, if his
incapacity resulted from his having engaged in a felonious
criminal enterprise, or if his incapacity was a result of injury
or disease incurred while in the military service of the United
State (or another country) for which the Participant receives
disability income benefits. The Plan Administrator shall
determine whether a Participant has incurred a Permanent
Disability in accordance with uniform principles consistently
applied on the basis of such evidence as it deems necessary and
advisable. The Plan Administrator may employ one or more
physicians to examine a Participant and to investigate health or
medical statements made by or on behalf of a Participant and may
rely upon such evidence as it deems sufficient. The Plan
Administrator's determination as to a Participant's Permanent
Disability shall be final.
2.23 Plan means this StockPlus Investment Plan, as amended
from time to time.
2.24 Plan Administrator means the committee responsible for
administering the Plan, as described in Section 11.
2.25 Plan Year means the calendar year.
2.26 Prior Plan means the James River Corporation of
Virginia Stock Purchase Plan, as in effect before the Effective
Date of the restated Plan.
2.27 Retirement Date means the first to occur of (a) the
date on which the Participant has attained age 55 and has
completed 15 years of Service, or (b) the date on which the
Participant attains age 59-1/2.
2.28 Rule 16b-3 means Rule 16b-3 of the Securities Exchange
Act of 1934, including any corresponding subsequent rule or
amendments thereto.
2.29 Service means an Employee's period of employment with
the Employer and Affiliated Companies, beginning with the
Employee's employment commencement date and ending with his
severance from service date, and including the following:
(a) An Employee's Service shall include periods during
which the Employee was on a Leave of Absence or was laid off
because of lack of work.
(b) An Employee's Service shall include periods of
service, as described above, with a predecessor employer
whose stock or assets are acquired by an Employer or an
Affiliated Company, except to the extent that the Board
provides otherwise.
(c) Transfers between Employers or Affiliated
Companies shall not be deemed terminations of Service.
An Employee's employment commencement date is the date on which
he first performs an Hour of Service for the Employer or an
Affiliated Company. An Employee's severance from service date is
the first to occur of (i) the date on which an Employee
terminates employment with the Employer and Affiliated Companies
because he quits, is discharged, dies or retires or (ii) the
first anniversary of the date on which the Employee is absent
(with or without pay) from employment for any other reason (such
as vacation, holiday, sickness, disability, leave of absence or
layoff), if the Employee is still absent as of the anniversary
date. This Section shall be administered in accordance with
applicable Department of Labor regulations.
2.30 Taxable Compensation means the total annual
compensation paid to an Employee by the Employer and Affiliated
Companies during a Plan Year, as defined in the Treasury
Regulations issued under Section 415 of the Internal Revenue
Code. "Taxable Compensation" includes an Employee's wages,
salaries, fees for professional services and other amounts
received for personal services actually rendered in the course of
employment with the Employer and Affiliated Companies (including,
but not limited to, commissions paid to salesmen, compensation
for services on the basis of a percentage of profits, commissions
on insurance premiums, tips and bonuses). Except as provided
below, "Taxable Compensation" does not include items such as:
(a) Salary reduction contributions and other
contributions made by the Employer or an Affiliated Company
to a plan of deferred compensation to the extent that the
contributions are not includable in the Employee's gross
income for the taxable year in which they are contributed.
(b) Amounts received from the exercise of a non-
qualified stock option or from restricted property.
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a statutory stock
option.
(d) Other amounts that receive special tax benefits,
such as premiums for group term life insurance (but only to
the extent that the premiums are not includable in the gross
income of the Employee).
Effective for Plan Years beginning after December 31, 1993, the
amount of annual Taxable Compensation taken into account under
the Plan for an Employee may not exceed $150,000, or an adjusted
amount determined pursuant to Sections 401(a)(17) and 415(d) of
the Internal Revenue Code. For purposes of Section 5.6, Taxable
Compensation includes Before-Tax Contributions, elective
contributions under a cafeteria plan, and elective contributions
under other arrangements required to be included under Section
414(q) of the Internal Revenue Code.
2.31 Trust Agreement means the Trust Agreement for the Plan,
which was entered into to create a Trust Fund to receive, hold,
invest and dispose of assets under the Plan.
2.32 Trustee means The Bank of New York, and any successor
Trustee selected by the Board to hold and administer the Trust
Fund. The Trustee shall be a fiduciary with respect to the Trust
Fund.
2.33 Trust Fund means the assets held by the Trustee under
the Trust Agreement.
2.34 Valuation Date means the last day of each calendar
month, or such other, more frequent, date as the Plan
Administrator may designate.
<PAGE>
SECTION III
PARTICIPATION
3.1 Participation in the Salary Reduction Plan.
(a) Each Employee who was eligible to participate in
the Prior Plan immediately before the Effective Date shall be
eligible to be a Participant in the Plan as of the Effective
Date.
(b) Each Employee, other than a temporary or seasonal
employee, who is not eligible to become a Participant pursuant to
subsection (a) shall be eligible to become a Participant as of
the later of (i) the date on which the Employee commences
employment with the Employer or (ii) July 1, 1994. A seasonal or
temporary employee is an employee who is hired to work on a
seasonal or temporary basis for a specified period of time and
who is not expected to be credited with 1,000 or more Hours of
Service during a 12-month period. The computation period for
this purpose is the 12 consecutive month period beginning with
the Employee's date of hire and subsequent 12-month periods
beginning on an anniversary of the Employee's date of hire.
(c) Notwithstanding the foregoing, any Canadian
Employee who is not already a Participant as of the Effective
Date of the amended and restated Plan shall not be eligible to
participate in the Plan.
3.2 Application for Participation.
(a) Participation in the Plan shall be voluntary. An
eligible Employee may elect to participate in the Plan by making
an enrollment election in such manner and at such time as the
Plan Administrator shall designate. An enrollment election must
be made before the date as of which the Employee's election to
become a Participant will be effective. An Employee's payroll
deductions shall begin within 30 days after the Plan
Administrator receives the Employee's enrollment election.
(b) When the Employer or an Affiliated Company
acquires the stock or assets of a company, the Plan Administrator
may establish a special enrollment period during which eligible
Employees of that company may elect to participate in the Plan.
3.3 Duration of Participation; Reemployment. A Participant
shall continue to be a Participant until he no longer has assets
credited to his Account. If a Participant or a person who was
formerly a Participant terminates employment and then is
reemployed by an Employer as an eligible Employee under Section
3.1, he shall be eligible to be a Participant upon his
reemployment.
<PAGE>
SECTION IV
CONTRIBUTIONS
4.1 Before-Tax Contributions. A Participant who is
eligible to participate in the Plan may elect to have Before-Tax
Contributions made on his behalf by entering into a salary
reduction agreement with his Employer in such form and at such
time as the Plan Administrator shall designate. Pursuant to the
agreement, his Employer will agree to reduce the Participant's
Compensation by a designated percentage and to contribute that
designated percentage to the Plan for the benefit of the
Participant. The designated percentage may be from 1% to 10% of
Compensation, provided that:
(a) At any time during the Plan Year, the Plan
Administrator may limit the percentage of Compensation that
may be contributed for the benefit of Highly Compensated
Employees, and
(b) The maximum amount of Before-Tax Contributions
that may be made on behalf of a Participant during a
calendar year is $7,000, or an adjusted amount as determined
pursuant to Sections 402(g) and 415(d) of the Internal
Revenue Code.
4.2 Matching Contributions.
(a) Matching Contributions shall be made only with
respect to a Participant's Before-Tax Contributions that are
invested in the Company Stock Fund pursuant to Section 9.2, if
the Participant has not attained age 57. If the Participant has
attained age 57, Matching Contributions shall be made with
respect to the Participant's Before-Tax Contributions, regardless
whether the Before-Tax Contributions are invested in the Company
Stock Fund.
(b) Each Employer shall make a Matching Contribution
for its Participants equal to the following percentage of its
Participants' Before-Tax Contributions made on or after July 1,
1994 that qualify for a Matching Contribution pursuant to
subsection (a):
The Employer shall
make Matching Contributions
equal to the following
Percentage of the
Participant's Before-tax
If a Participant's Before-Tax Contributions described
Contributions are: in subsection (a):
1% of Compensation 120%
2% of Compensation 100%
3% of Compensation 90%
4% of Compensation 80%
5% of Compensation 70%
6% of Compensation 60%
The Employer shall make no Matching Contribution with respect to
the portion of a Participant's Before-Tax Contributions that
exceed 6% of the Participant's Compensation. Except with respect
to Participants who have attained age 57, Matching Contributions
will not be made with respect to Before-Tax Contributions that
are not invested in the Company Stock Fund pursuant to Section
9.2.
(c) Matching Contributions shall be made with respect
to a Participant's Before-Tax Contributions, regardless whether
the Participant ceases to be an Employee before the Matching
Contribution is made.
4.3 Elections as to Contributions; Changes.
(a) A Participant may elect to have Before-Tax
Contributions made on his behalf, to change the contribution
percentage prospectively, or to request a suspension or
resumption of contributions by making an election in such form
and at such time as the Plan Administrator shall designate. The
Plan Administrator shall allow Participants to make such
elections at least monthly. All elections made by a Participant
shall continue in force until they are changed or until the
Participant ceases to be a Participant.
(b) A Participant's right to have Before-Tax
Contributions made on his behalf shall be automatically suspended
during any Leave of Absence during which the Participant receives
no Compensation. When the Participant returns to employment with
his Employer, his contributions will resume as of the date of his
return to employment at the contribution rate in effect at the
time his Leave of Absence began, unless the Participant elects to
suspend or change the rate of contributions.
(c) If a Participant's Before-Tax Contributions are
suspended pursuant to Section 7.1(c), the Participant may resume
Contributions at such time as the Plan Administrator may
designate after the suspension period required by Section 7.1(c).
(d) A Participant shall not be permitted to make up
suspended contributions, and Matching Contributions shall not be
made for a Participant with respect to any suspended
contributions.
4.4 Time and Manner of Payment of Contributions.
(a) Before-Tax Contributions shall be paid to the
Trustee as of the earliest date on which they can reasonably be
segregated from the Employer's general assets.
(b) Matching Contributions shall be paid to the
Trustee at least monthly. Matching Contributions may be made in
cash or in Company Stock or in any combination of the two.
<PAGE>
SECTION V
ACCOUNTS
5.1 Participants' Accounts. The following Accounts, with
such subaccounts as the Plan Administrator deems appropriate,
shall be maintained for each Participant:
(a) Before-Tax Contributions Account, to which shall
be credited Before-Tax Contributions made on or after the
Effective Date and the Participant's Salary Reduction
Account under the Prior Plan.
(b) After-Tax Contributions Account, to which shall be
credited the Participant's Non-Tax-Deferred Account under
the Prior Plan.
(c) Before-Tax Matching Contributions Account, to
which shall be credited Matching Contributions made on or
after the Effective Date and the Participant's Salary
Reduction Matching Account under the Prior Plan.
(d) After-Tax Matching Contributions Account, to which
shall be credited the Participant's Matching Account, other
than the Participant's Salary Reduction Matching Account,
under the Prior Plan.
(e) Rollover Account, to which shall be credited the
Participant's Rollover Account under the Prior Plan and
assets transferred from other plans that are not credited to
one of the foregoing Accounts pursuant to an Appendix.
The Plan Administrator may combine, eliminate or add to the
foregoing Accounts at such time as the Plan Administrator deems
appropriate. Contributions made under a plan that is merged into
this Plan, or whose assets are otherwise transferred to this
Plan, may be added to the foregoing Accounts according to an
applicable Appendix. Earnings on each Account shall be allocated
to that Account pursuant to the provisions of Section IX.
5.2 Allocation of Contributions. As of each Valuation
Date, the Plan Administrator shall allocate to the Accounts of
each Participant the contributions made for the Participant's
benefit since the preceding Valuation Date.
5.3 Annual Addition and Benefit Limitations.
(a) Notwithstanding the foregoing, the total amount of
the Annual Additions, as defined hereafter, that may be allocated
to the Accounts of a Participant for a Plan Year under all
defined contribution plans maintained by the Employer and
Affiliated Companies shall not exceed the lesser of (i) $30,000
or (ii) 25% of the Participant's Taxable Compensation. The
$30,000 amount referred to above shall be adjusted from time to
time to correspond to the amount prescribed by law under Section
415(c)(1)(A) of the Internal Revenue Code or by the Secretary of
the Treasury pursuant to Section 415(d) of the Internal Revenue
Code, determined as of the last day of the Plan Year to which the
limitation applies. The Plan Year shall be the limitation year
used to determine whether the requirements of this Section have
been satisfied.
(b) For purposes of this Section, "Annual Additions"
for a Participant means the sum (under all defined contribution
plans maintained by the Employer and Affiliated Companies) of (i)
Before-Tax Contributions, Matching Contributions and other
Employer and Affiliated Company contributions made on his behalf,
(ii) forfeitures credited to his Accounts and (iii) other
voluntary contributions made by the Participant. Annual
Additions shall not include excess Before-Tax Contributions that
are distributed by April 15 following the calendar year in which
the contributions were made, pursuant to Section 5.7.
(c) If a Participant is or has been a participant in
one or more defined benefit plans and in one or more defined
contribution plans maintained by the Employer or an Affiliated
Company, then the sum of the Participant's "defined benefit plan
fraction" (defined below) and his "defined contribution plan
fraction" (defined below) for any Plan Year as applied to the
plans shall not exceed 1.0. The benefits provided under the
defined benefit plans shall be reduced to comply with the limits
of this subsection (c) before the contributions made to the
defined contribution plans are reduced. For purposes of this
Section:
(i) The "defined benefit plan fraction" for any
Participant for any Plan Year is a fraction, the
numerator of which is the Participant's projected
annual benefit under all defined benefit plans of the
Employer and Affiliated Companies (determined as of the
close of the Plan Year) and the denominator of which is
the lesser of:
(x) The product of 1.25 multiplied by
$90,000 (or such other amount as is permitted or
required to be used under Section 415(e) of the
Internal Revenue Code), or
(y) The product of 1.4 multiplied by 100% of
the Participant's highest average Taxable
Compensation for the three consecutive years
during which he was a participant in the defined
benefit plans.
(ii) The "defined contribution plan fraction" for
any Participant for any Plan Year is a fraction, the
numerator of which is the sum of the Annual Additions
to the Participant's Accounts as of the close of the
Plan Year under all defined contribution plans of the
Employer and Affiliated Companies, and the denominator
of which is the sum of the lesser of the following
amounts determined for the Plan Year and for each
previous year of service with the Employer and
Affiliated Companies:
(x) The product of 1.25 multiplied by the
$30,000 amount described in subsection (a) (as
adjusted), or
(y) The product of 1.4 multiplied by 25% of
the Participant's Taxable Compensation for the
Plan Year.
As an alternative to the foregoing, in determining the limits of
this subsection (c), the Plan Administrator may use any other
method permissible under Section 415 of the Internal Revenue
Code.
(d) As of the last day of each Plan Year, any excess
Annual Additions shall be held in a suspense account and used to
reduce contributions for the Participant for the next Plan Year
(and succeeding Plan Years, as necessary). If the Participant is
no longer a Participant at the end of a Plan Year, the excess
amount will be used to reduce contributions for the Plan Year
(and succeeding Plan Years) for all Participants who are employed
by the Employer with which the Participant was employed.
5.4 Anti-Discrimination Test for Before-Tax Contributions.
(a) Notwithstanding the foregoing provisions of the
Plan, the Plan shall meet the anti-discrimination test of Section
401(k) of the Internal Revenue Code (described in subsection (b))
for each Plan Year. In order to ensure that the anti-
discrimination test is met, the Plan Administrator shall direct
the Employer to adjust the Before-Tax Contributions for the Plan
Year to the extent necessary to meet the requirements of Section
401(k) of the Internal Revenue Code and shall instruct the
Employer as to how such adjustment shall be made. An adjustment
to Before-Tax Contributions shall be accomplished by (i)
requiring each Highly Compensated Employee to reduce (or
eliminate) the Before-Tax Contributions to be made on his behalf
for the Plan Year, (ii) returning Before-Tax Contributions made
on behalf of Highly Compensated Employees to the Employees as of
the end of the Plan Year, in the manner described in Section 5.7,
(iii) making an additional, fully vested Employer contribution to
the Plan, which shall be administered as an additional Before-Tax
Contribution, for Participants who are not Highly Compensated
Employees and who elected to have Before-Tax Contributions made
for the Plan Year, or (iv) taking such other actions as the Plan
Administrator deems appropriate. If the Employer makes an
additional, fully vested Employer contribution to the Plan
pursuant to subparagraph (iii) above, the contribution shall be
paid to Trustee no later than the end of the twelve-month period
immediately following the Plan Year to which the contribution
relates.
(b) The anti-discrimination requirements of Section
401(k) of the Internal Revenue Code require that, in each Plan
Year, one of the following tests must be met:
(i) The Actual Deferral Percentage (defined
below) of the Highly Compensated Employees is not more
than the Actual Deferral Percentage of all other
eligible Employees multiplied by 1.25; or
(ii) The excess of the Actual Deferral Percentage
of the Highly Compensated Employees over that of the
other eligible Employees is not more than 2 percentage
points, and the Actual Deferral Percentage of the
Highly Compensated Employees is not more than the
Actual Deferral Percentage of all other eligible
Employees multiplied by 2.
(c) The Actual Deferral Percentage is the average of
the ratios, calculated separately for each Employee who is
eligible to participate in the Plan, of the amount of Before-Tax
Contributions that are credited under the Plan on behalf of the
eligible Employee for the Plan Year, to the Employee's
Compensation for the Plan Year. Matching Contributions allocated
to Participants' Matching Contributions Accounts may be included
in computing the Actual Deferral Percentage for a Plan Year, if
the Plan Administrator determines that inclusion of such
contributions is appropriate. As described in subsection (b),
the Actual Deferral Percentage of the Highly Compensated
Employees shall be compared to the Actual Deferral Percentage of
all other eligible Employees. The limitations of Section
5.4(b)(ii) shall be used only to the extent permitted by
applicable Treasury regulations.
(d) Notwithstanding the foregoing, if the test
described in subsection (b) is not satisfied for a Plan Year, the
Plan Administrator may use any other test permitted under Section
401(k) of the Internal Revenue Code to determine whether the Plan
meets the anti-discrimination requirements of Section 401(k) of
the Internal Revenue Code.
(e) If the Company maintains more than one plan
qualified under Internal Revenue Code Section 401(a), and if the
plans are aggregated for purposes of satisfying the coverage or
anti-discrimination requirements of Section 401(a) or
410(b)(1)(A) or (B) of the Internal Revenue Code, all qualified
cash or deferred arrangements contained in such plans shall be
aggregated for purposes of performing the anti-discrimination
test for Before-Tax Contributions. If a Highly Compensated
Employee participates in more than one plan of the Company, all
Before-Tax Contributions made by the Highly Compensated Employee
under all such plans shall be aggregated for purposes of
performing the test described in subsection (b), above. The Plan
Administrator shall administer the anti-discrimination tests of
Section 5.4 and 5.5 in accordance with Internal Revenue Service
rulings and Treasury regulations in effect from time to time.
(f) In the case of a Highly Compensated Employee
described in Section 5.6(d), the Actual Deferral Percentage for
such Highly Compensated Employee shall be the greater of (i) the
Actual Deferral Percentage determined by combining the
contributions and Compensation of all of the Employee's family
members who are eligible to participate in the Plan and who are
Highly Compensated Employees (without regard to family
aggregation) or (ii) the Actual Deferral Percentage determined by
combining the contributions and Compensation of all family
members of the Employee eligible to participate in the Plan.
5.5 Anti-Discrimination Test for Matching Contributions.
(a) Notwithstanding the foregoing provisions of the
Plan, the Plan shall meet the anti-discrimination test of Section
401(m) of the Internal Revenue Code (described in subsection (b))
for each Plan Year. In order to meet the anti-discrimination
test, the Plan Administrator shall reduce the Matching
Contributions for the Plan Year to the extent necessary to meet
the requirements of Section 401(m) of the Internal Revenue Code,
in the manner described in Section 5.7. The Plan Administrator
may also take such other actions to reduce Matching Contributions
as the Plan Administrator deems appropriate, including, without
limitation, actions similar to those described in Section 5.4(a).
(b) The anti-discrimination requirements of Section
401(m) of the Internal Revenue Code require that, in each Plan
Year, one of the following tests must be met.
(i) The Contribution Percentage (defined below)
of the Highly Compensated Employees is not more than
the Contribution Percentage of all other eligible
Employees multiplied by 1.25; or
(ii) The excess of the Contribution Percentage of
the Highly Compensated Employees over that of the other
eligible Employees is not more than 2 percentage
points, and the Contribution Percentage of the Highly
Compensated Employees is not more than the Contribution
Percentage of all other eligible Employees multiplied
by 2.
(c) The Contribution Percentage is the average of the
ratios, calculated separately for each eligible Employee, of the
amount of Matching Contributions that are credited under the Plan
on behalf of the eligible Employee for the Plan Year, to the
Employee's Compensation for the Plan Year. Before-Tax
Contributions may be included in computing the Contribution
Percentage for a Plan Year, if the Plan Administrator determines
that inclusion of such contributions is appropriate. However,
Matching Contributions used to satisfy the anti-discrimination
test described in Section 5.4(b) shall not be taken into account
for purposes of the anti-discrimination test described in
subsection (b) above, to the extent required by law. As
described in subsection (b), the Contribution Percentage of the
Highly Compensated Employees shall be compared to the
Contribution Percentage of all other eligible Employees.
(d) Notwithstanding the foregoing, if the test
described in subsection (b) is not satisfied for a Plan Year, the
Plan Administrator may use any other test permitted under Section
401(m) of the Internal Revenue Code to determine whether the Plan
meets the anti-discrimination requirements of Section 401(m) of
the Internal Revenue Code. The limitations of Section 5.5(b)(ii)
shall be used only to the extent permitted by applicable Treasury
regulations.
(e) If the Company maintains more than one plan
qualified under Section 401(a) of the Internal Revenue Code, and
if the plans are aggregated for purposes of satisfying the
discrimination or coverage requirements of Section 401(a)(4) or
410(b)(1)(A) or (B) of the Internal Revenue Code, all Matching
Contributions made to such plans will be aggregated for purposes
of performing the anti-discrimination test described in
subsection (b) above. If a Highly Compensated Employee is
eligible to participate in more than one plan maintained by the
Company, Matching Contributions made on behalf of the Highly
Compensated Employee under all such plans will be aggregated for
purposes of performing the anti-discrimination test described in
subsection (b) above.
(f) In the case of a Highly Compensated Employee
described in Section 5.6(d), the percentage derived in subsection
(b) above shall be the greater of the percentage derived in
subsection (b), determined by combining the contributions and
Compensation of all of the Employee's contributions and
Compensation of all of the Employee's family members who are
eligible to participate in the plan and who are Highly
Compensated Employees (without regard to family aggregation), and
the percentage determined under subsection (b) determined by
combining the contributions and Compensation of all family
members who are eligible to participate in the plan.
(g) Notwithstanding any other provision of the Plan,
the sum of the Actual Deferral Percentage and the Contribution
Percentage (as defined above) on behalf of Highly Compensated
Employees may not exceed the "aggregate limit" permitted under
the multiple use test, as set forth in Treasury Regulation
section 1.401(m)-2(b). If the aggregate limit is exceeded, then
the Matching Contributions of those Highly Compensated Employees
who participate in the Plan will be reduced (beginning with such
Highly Compensated Employee whose percentage is the highest) so
that the limit is not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage is reduced shall
be treated as an excess contribution under Section 5.7(c). The
Actual Deferral Percentage and the Contribution Percentage of the
Highly Compensated Employees are determined after any correction
required to be made under this subsection (g). Multiple use does
not occur if both the Actual Deferral Percentage and the
Contribution Percentage of the Highly Compensated Employees does
not exceed 1.25 multiplied by the Actual Deferral Percentage and
the Contribution Percentage of the non-Highly Compensated
Employees.
5.6 Highly Compensated Employees.
(a) Except as otherwise provided below, in computing
the anti-discrimination tests described in Sections 5.4 and 5.5,
a Highly Compensated Employee is an Employee who, during the Plan
Year or the preceding Plan Year:
(i) Was at any time a 5% owner of the Employer or
an Affiliated Company,
(ii) Received Taxable Compensation from the
Employer and Affiliated Companies in excess of $75,000,
(iii) Received Taxable Compensation from the
Employer and Affiliated Companies in excess of $50,000
and was in the top 20% of the Employees, when ranked on
the basis of Taxable Compensation paid during the Plan
Year, or
(iv) Was at any time an officer and received
Taxable Compensation greater than 50% of the amount in
effect under Section 415(b)(1)(A) of the Internal
Revenue Code for the Plan Year.
The determination of Highly Compensated Employees shall be made
in accordance with Section 414(q) of the Internal Revenue Code.
(b) In determining who are Highly Compensated
Employees for a Plan Year, an Employee who was not described in
subsection (a)(ii), (iii) or (iv) above for the preceding Plan
Year (without regard to this subsection) shall not be treated as
described in subsection (a)(ii), (iii) or (iv) for the current
Plan Year, unless the Employee is one of the 100 Employees who
are paid the most Taxable Compensation during the current Plan
Year.
(c) For purposes of determining who are officers, not
more than 50 Employees (or, if less, the greater of three
Employees or 10% of all Employees) shall be treated as officers.
If no officer of the Employer or Affiliated Company receives the
amount of Taxable Compensation described in subsection (a)(iv)
above, the highest paid officer for the Plan Year shall be
treated as described in subsection (a)(iv).
(d) If any person is a family member of a 5% owner or
a family member of one of the ten Highly Compensated Employees
who are paid the most Taxable Compensation during a Plan Year,
then (i) the person shall not be considered a separate Employee
for purposes of this Section and (ii) any Compensation paid to
the person (and any applicable contribution or benefit on his
behalf) shall be treated as if it were paid to (or on behalf of)
the 5% owner or Highly Compensated Employee.
(e) For purposes of determining the number of
Employees in the top paid group described in subsection (a)(iii),
the following Employees may be excluded:
(i) Employees who have not completed six months
of service,
(ii) Employees who normally work less than 17-1/2
hours per week,
(iii) Employees who normally work during not more
than six months during any Plan Year,
(iv) Employees who have not attained age 21,
(v) Employees whose terms of employment are
covered by a collective bargaining agreement between
Employee representatives and the Employer or an
Affiliated Company, and
(vi) Employees who are non-resident aliens and who
receive no United States earned income from the
Employer or Affiliated Companies.
(f) A Highly Compensated Employee includes a former
Employee who separated from service prior to the Plan Year for
which the determination was made and who was an active Highly
Compensated Employee for either (i) such Employee's separation
year or (ii) any Plan Year ending on or after the Employee's 55th
birthday.
5.7 Distribution of Excess Contributions.
(a) If a Participant's Before-Tax Contributions exceed
the Internal Revenue Code Section 402(g) limit described in
Section 4.1 for a calendar year, the amount of Before-Tax
Contributions in excess of the limit and income attributable to
those contributions shall be distributed to the Participant by
the first April 15 following the close of the calendar year in
which the Before-Tax Contributions were made.
(b) If Before-Tax Contributions of Highly Compensated
Employees are required to be reduced as a result of the anti-
discrimination test described in Section 5.4, the excess Before-
Tax Contributions and income attributable to those contributions
shall be distributed to the Highly Compensated Employees within
2-1/2 months after the close of the Plan Year to which the
Before-Tax Contributions relate.
(c) If Matching Contributions of Highly Compensated
Employees are required to be reduced as a result of the anti-
discrimination test described in Section 5.5, the excess Matching
Contributions and income attributable to those contributions
shall be distributed to the Highly Compensated Employees within
2-1/2 months after the close of the Plan Year to which the
contributions relate. In determining the amount of the
distributions under this Section and Section 5.7(b), the Plan
Administrator shall use the leveling method described in
applicable Treasury regulations or any other method allowed by
the Internal Revenue Service.
(d) The amount of income attributable to excess
contributions is that portion of the income on the Participant's
Account to which the contributions were allocated for the Plan
Year that bears the same ratio as the amount of excess
contributions bears to the total balance of that Account.
(e) The distributions required under this Section may
be made without the consent of the Participant or his spouse and
may be made without regard to any Qualified Domestic Relations
Order.
(f) In order to comply with the applicable Internal
Revenue Code requirements, Matching Contributions attributable to
Before-Tax Contributions in excess of the Internal Revenue Code
Section 402(g) dollar limitation under Section 4.1 and Matching
Contributions attributable to excess Before-Tax Contributions
under Section 5.4 may be forfeited and applied to reduce future
Matching Contributions. Such Matching Contributions may be
forfeited regardless whether they are otherwise vested under the
Plan.
(g) If the Actual Deferral Percentage of a Highly
Compensated Employee is determined by combining the contributions
and Compensation of family members of the Employee, then the
Actual Deferral Percentage is reduced in accordance with the
leveling method referred to in Section 5.7(c) above and the
excess contributions for the family unit are allocated among the
family members in proportion to the contributions of each family
member that have been combined. This procedure may be modified
as allowable under applicable Treasury regulations.
5.8 Correction of Error. If an error is made in the
adjustment of a Participant's Accounts, the error shall be
corrected by the Plan Administrator, and any gain or loss
resulting from the correction shall be credited to the income or
charged as an expense of the Trust Fund for the Plan Year in
which the correction is made. In no event shall allocations
previously made to the Accounts of other Participants be required
to be adjusted on account of the error.
<PAGE>
SECTION VI
VESTING AND DISTRIBUTION OF ACCOUNTS
6.1 Vested Interest. As of the Effective Date of the
restated Plan, each Participant shall have a fully vested
interest at all times in his Accounts.
6.2 Distribution Upon Termination of Employment. Subject
to Section 6.4(h), a Participant shall become entitled to a
distribution of his Accounts when he retires on or after his
Retirement Date or when he is otherwise no longer employed by the
Employer and Affiliated Companies. A Participant's Accounts
shall be valued as of the Valuation Date as of which the
distribution is made. All the Participant's outstanding loans
described in Section 7.4 shall become due and payable upon the
Participant's termination of employment.
6.3 Death. If a Participant dies before his Accounts have
been distributed, his Accounts shall be paid to his Beneficiary.
The Participant's Accounts shall be valued as of the Valuation
Date as of which the distribution is made. All the Participant's
outstanding loans described in Section 7.4 shall become due and
payable upon the Participant's death.
6.4 Form and Time of Payment.
(a) If a Participant, other than a Canadian Employee,
terminates employment with the Employer and Affiliated Companies,
or if a Participant dies before his Accounts have begun to be
distributed, the Participant's Accounts will be distributed in
one of the following forms selected by the Participant (or his
Beneficiary, in the case of the Participant's death):
(i) The Accounts may be paid to the Participant
(or Beneficiary) in a lump sum payment.
(ii) The Accounts may be paid to the Participant
(or Beneficiary) in monthly installments over a term
certain extending not beyond the shorter of (x) 15
years or (y) the life expectancies of the Participant
and his Beneficiary. If the Participant dies before
the completion of installments, any balance of the
Accounts shall be paid to his Beneficiary as provided
in Section 6.3. If a Beneficiary who is receiving
payments dies, any remaining balance of the Accounts
shall be paid to the personal representative of the
Beneficiary's estate. When establishing the term of
installment payments to be paid to a Participant and
his Beneficiary, at the time payments begin, the
present value of the payments projected to be paid to
the Participant, based on his life expectancy, must be
more than 50% of the present value of the payments
projected to be paid to the Participant and his
Beneficiary, based on their life expectancies.
(b) The Account balance of a Canadian Employee whose
employment terminates for any reason will be distributed in a
lump sum payment.
(c) In order for benefits to begin to be paid to a
Participant or Beneficiary, the Participant or Beneficiary must
request payment, subject to the terms of the Plan. If the
Participant is not a Canadian Employee and has not attained age
70 and the Participant's Account balance has ever exceeded
$3,500, the Participant must consent to the distribution. The
Participant's consent must be given in writing on a form
designated by the Plan Administrator. To the extent required by
law, such form, and a notice which explains the optional forms of
benefit available to the Participant and his right to defer the
receipt of his benefits under subsection (d) below, will be
provided to the Participant no less than 30 days and no more than
90 days before the date on which distribution is to commence. A
distribution may commence less than 30 days after the date on
which the notice described above is given to the Participant,
provided that:
(i) The Plan Administrator informs the
Participant that the Participant has a right to a
period of at least 30 days after receiving the notice
to consider the decision as to whether to elect a
distribution (and, if applicable, a particular
distribution option), and
(ii) The Participant, after receiving the notice,
affirmatively elects a distribution.
Payments shall be made or shall begin to be made as soon as is
administratively feasible after the Participant or Beneficiary
requests the payment as described above. If additional
allocations are to be made to the Participant's Account after the
distribution date, the additional allocations will be distributed
as soon as is administratively feasible after they are made.
(d) A Participant who is not a Canadian Employee and
whose Account balance has ever exceeded $3,500 may elect to
postpone commencement of his benefit to a Valuation Date not
later than his 70th birthday. A Participant who has elected to
postpone commencement of his benefit may later elect to begin
receiving his benefit at an earlier Valuation Date than the date
originally designated.
(e) The following rules shall apply to a deceased
Participant who was not a Canadian Employee and whose Account
balance exceeds or has exceeded $3,500:
(i) If a Participant dies after payments have
begun, then his remaining Account balance, if any, must
be distributed to his Beneficiary at least as rapidly
as under the method of distribution elected by the
Participant.
(ii) If a Participant dies before his Account
balance has begun to be distributed, then, except as
provided below, his Account balance, if any, must be
distributed within five years after the Participant's
death. If the Participant's Account balance is
distributed in installment payments to (or for the
benefit of) an individual Beneficiary, then the
Participant's Account balance may be distributed over a
period not extending beyond the Beneficiary's life
expectancy, and the payments must begin not later than
one year after the Participant's death (or such other
date as may be prescribed by Treasury regulations).
(f) Notwithstanding the foregoing, distributions from
the Plan must begin not later than the April 1 following the
calendar year in which a Participant reaches age 70-1/2. If a
Participant is still in employ of the Employer when distributions
must begin, the Participant's Account will be distributed in a
lump sum payment or in at least annual installments over a period
permitted by Internal Revenue Code Section 401(a)(9). A
Participant shall be required to select a distribution form that
complies with the requirements of Internal Revenue Code Section
401(a)(9). Payments will begin as of the April 1 following the
calendar year in which the Participant reaches age 70-1/2. If
the Participant fails to elect the form in which his Account is
to be distributed, the Plan Administrator shall distribute the
Participant's Account in a lump sum and shall distribute any
additional allocations as soon as is administratively feasible
after the close of the Plan Year in which the additional
allocations are made.
(g) A Participant may elect to have the portion of his
Account that is invested in the Company Stock Fund paid in whole
shares of Company Stock, with the value of fractional shares paid
in cash, or entirely in cash. For purposes of determining the
amount of a cash distribution, Company Stock will be valued as of
the Valuation Date as of which the distribution is made. If part
or all of a Participant's Account is invested in any investment
fund other than the Company Stock Fund, that portion of the
Account shall be paid in cash and shall be valued as of the
Valuation Date as of which the distribution is made.
(h) Notwithstanding the foregoing, a Participant's
Before-Tax Contributions Account and Before-Tax Matching
Contributions Account may not be distributed unless:
(i) The Participant dies, incurs a Permanent
Disability, attains age 59-1/2, separates from the
service of the Employer and Affiliated Companies (as
defined by applicable regulations), or qualifies for a
withdrawal under Section 7.1 or 7.2(d);
(ii) The Participant transfers employment to an
employer that has purchased substantially all of the
assets used by the Participant's former employer in its
trade or business, and the distribution is made within
the time period required by applicable regulations;
(iii) The Participant is and continues to be
employed by a corporation that was formerly a
subsidiary of the Employer or an Affiliated Company and
the stock of which has been sold, and the distribution
is made within the time period required by applicable
regulations; or
(iv) The Plan is terminated and no successor plan
is established.
This Section 6.4(h) shall apply as required by Section 401(k) of
the Internal Revenue Code, notwithstanding anything in the Plan
to the contrary, and shall be administered consistent with the
requirements of Section 401(k).
(i) If a Participant or Beneficiary elects a
distribution from the Plan and for any reason part of the amount
elected cannot be distributed (for example, because a portion of
the Account is invested in a fund from which a distribution
cannot be made for reasons over which the Plan Administrator and
Trustee have no control), a partial distribution attributable to
the available portion of the elected amount may be made.
6.5 Reemployed Participants. If a terminated Participant
is reemployed by an Employer before incurring five consecutive
one-year breaks in Service, the Participant may have the value of
the forfeited portion of his Account, if any, reinstated by
repaying to the Plan the amount previously distributed to him.
The repayment must be made no later than the earlier of (x) five
years after the first date on which the Participant is reemployed
or (y) the close of the Participant's first five consecutive one-
year breaks in Service beginning after the distribution. The
Employer shall restore the forfeiture by making an additional
contribution to the Plan. A break in Service is a 12-month
period during which the Employee is not employed by the Employer
or an Affiliated Company following his severance from Service
date. If an Employee is absent from work on account of maternity
or paternity leave, the Employee shall not be considered to have
a break in Service for the first 12-month period in which the
Employee would otherwise have had a break in Service. Maternity
leave for this purpose is a period during which the Employee is
absent because of (i) the pregnancy of the Employee, (ii) the
birth of a child of the Employee, (iii) the placement of a child
with the Employee in connection with the Employee's adoption of
the child, or (iv) the Employee's caring for a child immediately
after the birth or placement of the child.
6.6 Benefits to Minors and Incompetents.
(a) If any person entitled to receive payment under
the Plan is a minor, the Plan Administrator shall pay the amount
in a lump sum directly to the minor, to a guardian of the minor
or to a custodian selected by the Trustee under the appropriate
Uniform Transfers to Minors Act.
(b) If a person who is entitled to receive payment
under the Plan is physically or mentally incapable of personally
receiving and giving a valid receipt for any payment due (unless
a previous claim has been made by a duly qualified committee or
other legal representative), the payment may be made to the
person's spouse, son, daughter, parent, brother, sister or other
person deemed by the Plan Administrator to have incurred expense
for the person otherwise entitled to payment.
6.7 Location of Missing Participants.
(a) If a Participant cannot be located after
reasonable efforts have been made by the Plan Administrator to
locate him (or, in the case of a Participant's death, his
Beneficiary), then the Participant's Account shall be forfeited.
If a Participant's Account exceeds $500, reasonable efforts to
achieve payment shall be deemed to have been made if the Plan
Administrator is unable to locate the Participant (or
Beneficiary) after two successive certified or similar mailings
to the last address on file with the Plan Administrator;
provided, however, that in no event shall such reasonable efforts
be deemed to have been completed earlier than the close of the 12
consecutive calendar month period following the last of the two
successive mailings. If a Participant's Account does not exceed
$500, reasonable efforts to achieve payment shall be deemed to
have been made if the Plan Administrator is unable to locate the
Participant (or Beneficiary) after one certified or similar
mailing to the last address on file with the Plan Administrator
and the Participant (or Beneficiary) does not respond to the
mailing within three months following the date of the mailing.
(b) As of the Valuation Date next following the end of
the 12-month period or three-month period (whichever is
applicable), the missing Participant's Account shall be
forfeited. If the Participant or Beneficiary makes a valid
written claim for the Account after it has been forfeited, the
Participant's former Employer shall make a contribution to the
Plan to reinstate the forfeited amount to the Participant's
Account. The Employer's contribution may be made in one or more
payments over such period of time as the Employer deems
appropriate.
6.8 No Guarantee of Values. The Employer does not
guarantee that the market value of the Company Stock when it is
distributed will be equal to its purchase price or that the total
amount distributable or withdrawable under the Plan will be equal
to or greater than the amount of the Participant's contributions
and loans. Each Participant assumes all risk of any decrease in
the market value of the Company Stock and other assets allocable
to his Account in accordance with the provisions of the Plan.
6.9 Eligible Rollover Distributions.
(a) Notwithstanding any provision of the Plan to the
contrary, a distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an
eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct
rollover.
(b) Definitions.
(i) Eligible rollover distribution: 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: 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; any distribution to the extent such distribution
is required under Section 401(a)(9) of the Internal
Revenue Code; and 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).
(ii) Eligible retirement plan: An eligible
retirement plan is an individual retirement account
described in Section 408(a) of the Internal Revenue
Code, an individual retirement annuity described in
Section 408(b) of the Internal Revenue Code, an annuity
plan described in Section 403(a) of the Internal
Revenue Code, or a qualified trust described in Section
401(a) of the Internal Revenue Code, that accepts the
distributee's eligible rollover distribution. However,
in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(iii) Distributee: A distributee includes an
employee or former employee. In addition, the
employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former
spouse who is the alternate payee under a qualified
domestic relations order, as defined in Section 414(p)
of the Internal Revenue Code, are distributees with
regard to the interest of the spouse or former spouse.
(iv) Direct rollover: A direct rollover is a
payment by the Plan to the eligible retirement plan
specified by the distributee.
<PAGE>
SECTION VII
WITHDRAWALS AND LOANS
7.1 Hardship Withdrawals.
(a) A Participant who is not a Canadian Employee may
request that the Plan Administrator authorize a hardship
withdrawal to be made from his Accounts, if the Participant has
incurred financial hardship, as described below.
(b) A Participant will be considered to have incurred
financial hardship if he has immediate and heavy financial needs
that cannot be fulfilled through other reasonably available
financial resources of the Participant. Immediate and heavy
financial needs shall mean needs resulting from:
(i) Expenses for medical care described in
Section 213(d) of the Internal Revenue Code previously
incurred by the Participant, the Participant's spouse,
or any dependents of the Participant (as defined in
Section 152 of the Internal Revenue Code) or necessary
for these persons to obtain medical care described in
Section 213(d) of the Internal Revenue Code;
(ii) Costs directly related to the purchase of a
principal residence for the Participant (excluding
mortgage payments);
(iii) Payment of tuition and related educational
fees for the next 12 months of post-secondary education
for the Participant or his spouse, children or
dependents (as defined in Section 152 of the Internal
Revenue Code);
(iv) Payments necessary to prevent the eviction of
the Participant from his principal residence or
foreclosure on the mortgage of the Participant's
principal residence; or
(v) Any additional expenses or payments approved
by the Internal Revenue Service.
The determination of hardship shall be made by the Plan
Administrator in a uniform and nondiscriminatory manner in
accordance with such standards as may be promulgated from time to
time by the Internal Revenue Service.
(c) A distribution will be deemed necessary to satisfy
an immediate and heavy financial need of the Participant if all
of the following requirements are met:
(i) The distribution is not in excess of the
amount of the Participant's immediate and heavy
financial need;
(ii) The Participant has obtained all
distributions,other than hardship withdrawals, and all
non-taxable loans currently available under all plans
maintained by the Employer;
(iii) The Participant may not make contributions to
the Plan or any other plan of deferred compensation
maintained by the Employer (except for any defined
benefit plan maintained by the Employer that requires
mandatory employee contributions) for 12 months after
receipt of the withdrawal; and
(iv) The Participant may not make Before-Tax
Contributions for the calendar year that immediately
follows the year of the withdrawal in excess of the
applicable limit under Section 4.1(b) for the year,
minus the amount of the Participant's Before-Tax
Contributions for the year in which the withdrawal is
made.
(d) Hardship withdrawals may be made as of the end of
any month (or more frequently, if the Plan Administrator so
determines). A Participant who wishes to make a hardship
withdrawal shall apply in writing to the Plan Administrator, in
such form and at such time as the Plan Administrator shall
designate. The Participant must furnish such information in
support of his application as may be requested by the Plan
Administrator.
(e) The Plan Administrator shall determine the amount,
if any, of withdrawal that may be made and may direct
distribution of as much of the eligible portion of the
Participant's Accounts as the Plan Administrator deems necessary
to alleviate the hardship. The Plan Administrator may not
authorize a hardship withdrawal in excess of the amount deemed
necessary to alleviate the hardship or in excess of the eligible
portion of the Participant's Accounts as of the date as of which
the Plan Administrator approves the withdrawal. The amount
withdrawn from a Participant's Accounts shall not exceed the
amount by which the balance of the Participant's Accounts exceeds
the unpaid balance of any outstanding loans described in Section
7.4. The Plan Administrator shall designate the order in which
hardship withdrawals shall be made from Participants' Accounts.
(f) Notwithstanding the foregoing, a Participant may
not withdraw from his Before-Tax Contributions Account any
earnings credited to that Account on or after January 1, 1989.
If Matching Contributions for years beginning on or after January
1, 1989 are included in computing the Actual Deferral Percentage
under Section 5.4(c), a Participant may not make a hardship
withdrawal from those Matching Contributions or earnings thereon.
(g) A hardship withdrawal shall be paid in a lump sum
payment as soon as is administratively feasible after the
Valuation Date coinciding with or next following the date on
which the hardship withdrawal is approved, in the same manner as
distributions are made pursuant to Section 6.4(f).
7.2 Withdrawals During Employment.
(a) Subject to subsections (b) and (c) below, a
Participant who is not a Canadian Employee may request a
withdrawal of all or a specified part of his After-Tax
Contributions Accounts, After-Tax Matching Contributions Account,
and Rollover Account as of any Valuation Date. A withdrawal may
not exceed the Participant's interest in the foregoing Accounts
as of the Valuation Date as of which the withdrawal is made and
may not exceed the limits described in subsections (b) and (c)
below.
(b) A Participant may not withdraw Matching
Contributions that were made with respect to after-tax
contributions under the Prior Plan, until the Matching
Contributions have been held in the Plan (including the Prior
Plan) for at least 24 calendar months.
(c) In order to make a withdrawal pursuant to
subsection (a), a Participant must submit an application in such
form and at such time as the Plan Administrator shall designate.
A Participant's Accounts shall be valued as of the Valuation Date
as of which the Plan Administrator approves the withdrawal. The
amount withdrawn from a Participant's Accounts shall not exceed
the amount by which the Participant's total Accounts, reduced by
the unpaid balance of any outstanding loans described in Section
7.4, exceeds the unpaid balance of any outstanding loans
described in Section 7.4.
(d) A Participant who is not a Canadian Employee and
who has attained age 59-1/2 may request a one-time withdrawal of
the entire balance in his Accounts as of any Valuation Date.
After a Participant who has attained age 59-1/2 has made a one-
time withdrawal of his entire balance in his Accounts, any future
withdrawals shall be subject to the limitations imposed under
subsections (b) and (c) above. If a one-time withdrawal is made
pursuant to this subsection (d), the Participant's outstanding
loans described in Section 7.4 shall become due and payable. Any
loan described in Section 7.4 that is not promptly repaid shall
be considered in default and treated as a taxable distribution to
the Participant. To make a one-time withdrawal pursuant to this
subsection (d), a Participant must submit an application in such
form and at such time as the Plan Administrator shall designate.
(e) A withdrawal shall be paid in a lump sum payment,
in the same manner as distributions are made pursuant to Section
6.4(f).
7.3 Withdrawals During Employment by Canadian Employees.
(a) Participants who are Canadian Employees may not
make withdrawals pursuant to Section 7.1 or 7.2. Instead, as of
any Valuation Date, a Participant who is a Canadian Employee may
withdraw all or any portion of his After-Tax Contributions
Account that does not exceed:
(i) That portion of the Account that has a market
value, as of the Valuation Date as of which the
withdrawal is made, equal to the aggregate after-tax
contributions made by the Participant to the Prior Plan
before the Valuation Date, less
(ii) The amount of any previous withdrawals made
by the Participant from the Account pursuant to
subsection (a).
(b) The Plan Administrator may authorize a Canadian
Employee to make a withdrawal from his After-Tax Matching
Contributions Account as of a Valuation Date if there is an
adverse condition in the Participant's affairs that, in the
opinion of the Plan Administrator, has resulted in an immediate
need for financial assistance to meet obligations incurred or to
be incurred by the Participant to pay (i) substantial medical or
other expenses to maintain the Participant's health or the health
of members of his immediate family, (ii) substantial expenses to
provide for the higher education of the Participant's children,
(iii) substantial expenses to maintain the Participant's welfare
and the welfare of his immediate family in the event of his
permanent lay-off, divorce, separation from his spouse or other
form of domestic breakdown, or (iv) substantial expenses arising
as a result of other family emergency, including, under
extraordinary circumstances, expenses needed to purchase a
primary residence. A Participant may not make a withdrawal
pursuant to this subsection (b) unless all amounts that may be
withdrawn pursuant to subsection (a) have been withdrawn.
(c) A withdrawal pursuant to this Section 7.3 shall be
made by submitting an application in such form and at such time
as the Plan Administrator shall designate. Withdrawals shall be
paid in a lump sum payment, in the same manner as distributions
are made pursuant to Section 6.4(f).
7.4 Loans. As of any Valuation Date, a Participant who is
an Employee, other than a Canadian Employee, may apply to the
Plan Administrator, for a loan to be made to the Participant from
his Accounts. Loan requests shall be made in such form and at
such times as the Plan Administrator shall designate. Loans
shall be made available to Participants who are not Employees if
and to the extent required by law, and, notwithstanding anything
in the Plan to the contrary, the Plan Administrator shall make
appropriate arrangements for such loans, if required by
applicable law. A loan may be made to a Participant subject to
the following conditions:
(a) The Plan Administrator shall implement procedures
for the authorization of Plan loans, using uniform and
nondiscriminatory standards. The Plan Administrator shall
take into consideration the terms of any existing Qualified
Domestic Relations Order in determining whether to authorize
a loan.
(b) The loan may only be made from a Participant's
vested interest in his Accounts as of the Valuation Date as
of which the loan is to be made. The minimum loan that may
be made to a Participant is $1,000 (or such other amount as
may be permitted by law) and the maximum loan is one-half of
the Participant's Accounts. The amount of loans outstanding
to a Participant at any time, aggregated with the
outstanding balance of all other loans to the Participant
from all other qualified plans maintained by the Employer
and Affiliated Companies, shall not exceed the lesser of:
(i) $50,000 (adjusted as described below); or
(ii) One-half of the Participant's Accounts under
the Plan.
The $50,000 amount referred to in subparagraph (i) above
shall be reduced by the difference between (x) the highest
outstanding balance of loans to the Participant from the
Plan during the one-year period ending on the day before the
date of the loan and (y) the outstanding balance of loans to
the Participant from the Plan on the date of the loan. For
purposes of applying the foregoing limitations, the value of
a Participant's Accounts shall be determined as of the
Valuation Date as of which the loan is to be made. Overdue
interest shall be deemed to be an outstanding loan.
(c) A Loan may not be made from a Participant's
Before-Tax Contributions that were made on or after July 1,
1994, that were matched by Matching Contributions, and that
have not been held in the Trust Fund for 24 consecutive
calendar months.
(d) Loans shall be available to all Participants on a
reasonably equivalent basis. Loans shall not be made
available to highly compensated Participants in a greater
percentage of their vested Account balances than the
percentage that is available to other Participants.
(e) Not more than one-half (or such other amount as
may be permitted by applicable law) of a Participant's
Accounts, determined immediately after the origination of
the loan, may be used as security for the outstanding
balance of all Plan loans made to a Participant.
(f) Loans shall be made in cash. When a loan is made
to a Participant, Company Stock and other assets held in his
Account will be liquidated to provide the funds to be loaned
to the Participant. The loan shall be evidenced by a
promissory note, which shall be held as an asset of the
Participant's Account.
(g) Interest on a loan shall be charged at a rate not
less than the prime rate in effect as of the first day of
the month in which the loan application is received by the
Plan Administrator, plus one percent. The Plan
Administrator shall determine the interest rate consistent
with applicable law. When establishing interest rates on
Plan loans, the Plan Administrator may charge different
rates based on the loan repayment method that will apply to
the Participant.
(h) A loan shall be repayable within five years from
the date on which the loan is made; provided that a loan
made for the purposes of enabling a Participant to purchase
his primary residence may have a term of up to ten years.
Loans to Employees shall be repaid by payroll deduction,
with equal payments (including principal and interest) due
each payday. Loans to Participants who are not active
Employees shall be repaid according to appropriate
arrangements made by the Plan Administrator. A Participant
may elect to prepay the balance of his outstanding loan at
any time by any method acceptable to the Plan Administrator.
If a Participant elects to prepay his outstanding loan, the
prepayment must be for the entire balance of the loan
amount, unless applicable law provides otherwise.
(i) A loan made to a Participant shall be considered a
separate investment of the portion of the Participant's
Account that is equal to the outstanding balance of the
loan. The balance in the borrowing Participant's Account
shall be reduced by the outstanding balance of the loan for
purposes of allocating net income and increases and
decreases in the value of the Trust Fund assets. Interest
and principal paid on the loan shall be credited to the
borrowing Participant's Account and shall be invested as
described in Section 9.7. Principal and interest paid on
the loan shall not be considered earnings of the Trust Fund
for allocation purposes.
(j) If an outstanding loan is not repaid as and when
due, the principal of and interest on the loan shall be
deducted from any benefit that the Participant or his
Beneficiary is entitled to receive, and the Participant or
Beneficiary shall be subject to tax in accordance with
Internal Revenue Code requirements. The unpaid principal
and interest shall be deducted from the Account on the first
date on which a Participant's Account may be distributed.
If a loan becomes due and payable upon a Participant's
termination of employment and the Participant (or
Beneficiary, in the event of his death) does not repay the
loan within 90 days after the Participant's termination of
employment, the portion of the Participant's Account
attributable to the unpaid loan will be deemed to be
distributed to the Participant (or Beneficiary) as of the
end of the 90-day period, and the Participant's Account
balance will be automatically offset by the unpaid loan
balance.
(k) If any amount is distributed from the Trust Fund
to a Participant or his Beneficiary while a loan to the
Participant is outstanding, the Plan Administrator shall
direct that the distributed amount be applied to reduce the
outstanding balance of the loan.
(l) Expenses incurred by the Plan Administrator and
the Trustee in making, administering and collecting a loan
may be charged against the Account of the borrowing
Participant.
(m) The Plan Administrator may adopt and utilize such
forms and other documents as may be necessary or appropriate
to administer the Plan's loan provisions, and such forms and
documents are incorporated herein by this reference.
(n) A Participant may not request more than two loans
during a Plan Year. The Participant must repay any
outstanding loan from the Plan before receiving a second
loan from the Plan.
7.5 Outstanding Prior Plan Loans. Any outstanding loan
made before June 30, 1984, as described in Section 4.8 of the
Prior Plan as in effect before July 1, 1994, must be repaid
within 90 days after the Effective Date.
7.6 Insiders. Notwithstanding anything in the Plan to the
contrary:
(a) The Plan Administrator may impose on Insiders such
restrictions and requirements regarding participation,
contributions, investments, distributions and other matters
as the Plan Administrator deems appropriate to comply with
Rule 16b-3 or other applicable law, and
(b) If required by Rule 16b-3 or other applicable law,
a Participant who is an Insider may not request a withdrawal
or loan from, or a transfer to or from, the Company Stock
Fund more frequently than once a month.
<PAGE>
SECTION VIII
TRUST ARRANGEMENTS
8.1 Appointment of Trustee. The Trustee shall be named in
the Trust Agreement. Upon execution of the Trust Agreement, the
Trustee shall have exclusive responsibility, authority and
discretion to hold and invest the assets of the Plan, as provided
in the Trust Agreement and in the Plan.
8.2 Appointment of Investment Managers. The Plan
Administrator may appoint investment managers to manage part or
all of the trust assets, as provided in the Trust Agreement. An
investment manager must qualify as an investment manager under
Section 3(38) of ERISA.
<PAGE>
SECTION IX
INVESTMENT OF ACCOUNTS
9.1 Investment Funds.
(a) The following investment funds shall be
established for purposes of the Plan:
(i) Company Stock Fund. The Company Stock Fund
shall be invested primarily in Company Stock. The
Trustee may purchase and sell Company Stock on the open
market, from and to the Company, and in any other
manner as the Trustee deems appropriate, consistent
with applicable securities laws, ERISA and the Internal
Revenue Code.
(ii) Other Investment Funds. The Plan
Administrator shall designate other investment funds
from time to time for investment of Participants'
Accounts. The Plan Administrator shall select the
investment funds in accordance with Section 404(c) of
ERISA and the regulations thereunder. Special
investment funds with respect to assets of plans that
are merged into the Plan may be designated pursuant to
an applicable Appendix.
(b) Plan assets may be invested in a short term
investment fund or in any other manner deemed appropriate by the
Trustee, pending investment in the appropriate investment fund.
(c) The Plan Administrator may impose upon any
investment fund such restrictions as may be necessary or
appropriate. For example, the Plan Administrator may restrict
transfers to or from an investment fund, and the Plan
Administrator may limit the amount of a Participant's Account
that may be transferred to or from an investment fund during a
specified period of time.
9.2 Investment of Accounts by Participants Under Age 57.
(a) Each Participant who has not yet attained age 57
may elect either (i) to have his Before-Tax Contributions
invested in the Company Stock Fund and receive Matching
Contributions with respect to the Before-Tax Contributions or
(ii) to have his Before-Tax Contributions invested in one or more
of the alternate investment funds and not receive Matching
Contributions with respect to the Before-Tax Contributions.
(b) Before-Tax Contributions that are matched with
Matching Contributions pursuant to Section 4.2 automatically
shall be invested in the Company Stock Fund. Such matched
Before-Tax Contributions shall remain invested in the Company
Stock Fund, and may not be transferred to another investment
fund, until the earlier of (i) the date on which the matched
Before-Tax Contributions have been held in the Plan for at least
24 consecutive calendar months, or (ii) the date on which the
Participant attains age 57.
(c) Matching Contributions automatically shall be
invested in the Company Stock Fund, except as provided in Section
9.3. Matching Contributions, and earnings thereon, shall remain
invested in the Company Stock Fund and may not be transferred to
another investment fund until the Participant attains age 57.
(d) The following Accounts of a Participant who has
not attained age 57 shall be invested in the Company Stock Fund:
(i) The Participant's Before-Tax Contributions
that are made on or after July 1, 1994, that are
matched by Matching Contributions, and that have not
been held in the Plan for at least 24 months,
(ii) The portion of the Participant's Before-Tax
Contributions Account attributable to Before-Tax
Contributions made under the Prior Plan (and earnings
thereon),
(iii) The Participant's Before-Tax Matching
Contributions Account,
(iv) The Participant's After-Tax Contributions
Account, and
(v) The Participant's After-Tax Matching
Contributions Account.
(e) A Participant who has not attained age 57 may
elect to have the following Accounts invested in any of the
investment funds offered pursuant to Section 9.1:
(i) The portion of the Participant's Before-Tax
Contributions Account that is not required to be
invested in the Company Stock Fund pursuant to
subsection (d) above,
(ii) The Participant's Rollover Account, and,
(iii) Any amounts so designated pursuant to an
applicable Appendix to the Plan.
(f) Without limiting Section 12.1 in any way, it is
anticipated that the Board may determine that, as of a date to be
specified in the future, Participants who have attained age 57
may be permitted to invest the following Accounts in any of the
investment funds offered pursuant to Section 9.1:
(i) The Participant's After-Tax Contributions
Account, and
(ii) The Participant's After-Tax Matching
Contributions Account.
9.3 Investment of Accounts by Participants Who Have
Attained Age 57. Each Participant who has attained age 57 shall
have the right to direct the investment of all of his Accounts
into any of the investment funds offered pursuant to Section 9.1.
9.4 Directed Investments. With respect to those portions
of a Participant's Accounts that are not restricted to automatic
investment in the Company Stock Fund, investments may be directed
by the Participant in accordance with regulations issued under
the Internal Revenue Code and ERISA, as follows:
(a) A Participant may make investment directions in
such form and at such time as the Plan Administrator shall
designate. Investment directions shall specify the
investment funds in which the Participant's Accounts are to
be invested. Investment directions may be made at least
quarterly, and more frequently if the Plan Administrator so
determines, in whole percentages. Investment directions
shall be submitted to such person as the Plan Administrator
designates to implement Participants' directions. A
Participant's investment directions shall be implemented as
soon as is administratively feasible, consistent with
applicable law and the Trustee's fiduciary responsibilities.
An investment direction shall continue to apply until a
subsequent direction is properly submitted. A Participant's
Accounts may be charged for the reasonable expenses of
carrying out investment directions.
(b) To the extent required by applicable law or
regulations, each Participant shall be provided the
following information for each investment fund:
(i) An explanation that the Plan is intended to
constitute a plan described in Section 404(c) of ERISA
and the corresponding regulations, and that the
fiduciaries of the Plan may be relieved of liability
for any losses which are the direct and necessary
result of investment instructions given by such
Participant;
(ii) A description of the investment fund and its
investment objectives and risk and return
characteristics, including the type and diversification
of assets in the investment;
(iii) An identification of any designated
investment managers;
(iv) An explanation of the circumstances under
which the Participant may give instructions and
limitations thereon;
(v) A description of any fees and expenses which
may be charged to the Participant's Account in
connection with purchases or sales of interests in the
investment fund;
(vi) The name, address and telephone number of the
Plan fiduciary (or his designee) responsible for
providing the information required under this Section
9.4;
(vii) Any materials relating to the exercise of
voting or similar rights incidental to the
Participant's ownership interest in the investment
fund, to the extent that such rights are passed through
to Participants under the terms of the Plan;
(viii) If the investment fund is subject to the
Securities Act of 1933, a copy of the most recent
prospectus immediately prior to the Participant's
initial investment in the investment fund; and
(ix) With respect to the Company Stock Fund,
Participants shall be provided with all information
generally required to be provided to shareholders of
the Company.
(c) To the extent required by applicable law or
regulations, upon request, each Participant shall also be
provided the following information for each investment fund:
(i) A description of the annual operating
expenses and the total expenses, expressed as a
percentage of average net assets;
(ii) Copies of any prospectuses, financial
statements and reports, and any other materials that
are available to the Plan;
(iii) A list of the assets comprising the
portfolio, together with the value of each asset and,
if the asset is a fixed rate contract issued by a bank,
savings and loan association, or insurance company, the
name of the issuer, the term, and the rate of return on
the contract;
(iv) Information concerning the value of shares or
units in investment funds available to Participants
under the Plan, as well as the past and current
investment performance of such funds (determined, net
of expenses, on a reasonable and consistent basis); and
(v) Information concerning the value of shares or
units held in the Account of the Participant.
9.5 Limitations on Directed Investments. The Trustee may
decline to implement a Participant's investment directions if
such directions would:
(a) Result in a prohibited transaction as described in
ERISA section 406 or Internal Revenue Code section 4975;
(b) Generate taxable income to the Plan or jeopardize
its tax qualified status;
(c) Not be in accordance with the documents and
instruments governing the Plan;
(d) Cause a fiduciary to maintain the indicia of
ownership in an asset outside jurisdiction of the United
States district courts;
(e) Result in a loss greater than the balance in the
Participant's Account; or
(f) Result in certain transactions between the Plan
and the Employer or an affiliate of the Employer.
9.6 Application to Beneficiaries and Alternate Payees. All
Beneficiaries of deceased Participants who have Account balances
in the Plan may direct the investment of their Accounts into any
one or more of the investment funds offered pursuant to Section
9.1. After an Alternate Payee's interest in a Participant's
Accounts has been finally determined pursuant to Section 11.8,
the Alternate Payee may direct the investment of the Alternate
Payee's Accounts into one or more of the investment funds offered
pursuant to Section 9.1, to the same extent that the Participant
could have directed the investment of the Accounts.
9.7 Order of Withdrawals and Loans from the Investment
Funds. When a withdrawal or loan is made from a Participant's
Account that is invested in more than one investment fund, the
amount to be withdrawn or loaned shall be deducted
proportionately from the amount invested in each investment fund.
In the case of a loan, the amount to be deducted from each
investment fund shall be determined as of the Valuation Date as
of which the loan is to be made, after amounts to be allocated as
of the Valuation Date have been allocated but before any
transfers between the investment funds or withdrawals have been
made. Loan repayments shall be credited to the investment funds
in which the Participant's Account is invested, consistent with
the requirements of Section 9.2, if applicable. In the case of a
withdrawal, the amount to be deducted from each investment fund
shall be determined as of the Valuation Date as of which the
withdrawal is to be made, after amounts to be allocated as of
that Valuation Date have been allocated and after any loans or
any transfers between investment funds have been made. The Plan
Administrator shall have discretion to change, in a non-
discriminatory manner, the order in which withdrawals and loans
from the investment funds are to be made and credited.
9.8 Limitation on Insiders' Interests in Company Stock.
The Plan Administrator may determine that the fair market value
of Company Stock held in the Accounts of Participants who are
Insiders may not equal or exceed 20% of the fair market value of
all securities with a readily ascertainable fair market value
that are then held in the Trust Fund. If the limitation of this
Section is or may be exceeded, the Plan Administrator may direct
Insiders to invest all or part of their Accounts in investments
other than the Company Stock Fund, consistent with applicable
Internal Revenue Code and ERISA requirements.
9.9 Voting, Tender and Exercise of Similar Rights with
Respect to Company Stock.
(a) A Participant may instruct the Trustee how to
vote, tender, or exercise similar rights with respect to the
shares of Company Stock allocable to the Participant's Account.
The Trustee shall hold any voting, tender, or similar
instructions it receives from a Participant in the strictest
confidence and shall implement and follow procedures sufficient
to safeguard the confidentiality of such instructions, except to
the extent necessary to comply with Federal or state laws not
preempted by ERISA.
(b) Unless required by applicable law, the Trustee
shall not vote, tender, or exercise any similar rights with
respect to shares of Company Stock for which no investment
instructions are received from Participants.
(c) The Plan Administrator (or its agent) shall ensure
that all notices, forms, and other information regarding the
exercise of voting, tender, or similar rights are distributed to
Participants within a reasonable time before voting, tender, or
similar rights are to be exercised. Instructions from a
Participant must be received by the Trustee in time for the
Trustee to act with respect to them.
9.10 Management of the Company Stock Fund.
(a) The Plan Administrator shall implement and follow
procedures sufficient to safeguard the confidentiality of
information relating to the purchase, holding, and sale of
Company Stock by Participants, except to the extent necessary to
comply with Federal or state laws not preempted by ERISA.
(b) If required by law, the Plan Administrator shall
appoint an independent fiduciary (within the meaning of
applicable Department of Labor regulations) to perform certain
functions with respect to the Company Stock Fund if the Plan
Administrator determines that appointment of an independent
fiduciary is necessary because of a potential for undue Employer
influence upon Participants with regard to the direct or indirect
exercise of their shareholder rights.
(c) The Trustee shall manage the Company Stock Fund in
a manner consistent with ERISA, the Internal Revenue Code and
applicable securities laws. Consistent with these laws, the
Trustee shall implement appropriate procedures, restrictions and
limitations with respect to the purchase and sale of Company
Stock. If the Trustee is not able to execute fully Participants'
investment directions at a particular time, the Trustee shall
execute the instructions to the extent possible, in a pro rata
manner.
9.11 Allocation of Income. All net income that is earned on
investments in an investment fund described in Section 9.1 shall
be reinvested by the Trustee in that investment fund. As of each
Valuation Date, the Trustee shall determine the current fair
market value of each investment fund. As of each Valuation Date,
before making adjustments for withdrawals, loans and transfers,
the Plan Administrator shall adjust the Accounts invested in that
investment fund to reflect the value of the investment fund as of
that date. The adjustments shall be based on each Participant's
Account balance invested in the investment fund as of the
preceding Valuation Date. The outstanding balance of a
Participant's loans described in Section 7.4 will not be included
as part of his Account balance for purposes of allocations under
this Section 9.11.
<PAGE>
SECTION X
GENERAL PROVISIONS
10.1 Nonalienation of Benefits. No person shall have any
interest in or right to any assets of the Trust Fund or any
rights under the Plan except to the extent expressly provided in
the Plan. Benefits payable under the Plan shall not be subject
in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution,
or levy of any kind, either voluntary or involuntary, including
any liability for alimony or other payments for the support of a
spouse, former spouse, or for any other relative of a Participant
or Beneficiary, before actually being received by the person
entitled thereto under the terms of the Plan. Any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber,
charge or otherwise dispose of any right to benefits payable
under the Plan shall be void. The Trust Fund shall not in any
manner be liable for, or subject to, the debts, contracts,
liabilities, or torts of any person entitled to benefits
hereunder.
10.2 Merger or Consolidation. In the case of any merger or
consolidation of the Plan with, or transfer of assets or
liabilities to, any other plan, each Participant and Beneficiary
of the Plan shall have an accrued benefit immediately after the
merger, consolidation or transfer that is equal to or greater
than the accrued benefit that the Participant or Beneficiary had
immediately before the merger, consolidation or transfer.
10.3 No Contract of Employment. Nothing contained in the
Plan shall be construed as a contract of employment between the
Company and any person, or as giving a right to any person to
continue in the employment of an Employer, or as limiting the
right of an Employer to discharge any person at any time, with or
without cause.
10.4 Non-Reversion. It shall be impossible, at any time
before satisfaction of all liabilities with respect to
Participants and their Beneficiaries, for any part of the
principal or income of the Trust Fund to be used for, or diverted
to, purposes other than for the exclusive benefit of such
Participants and their Beneficiaries. However, the Employer's
contributions under the Plan for any particular Plan Year shall
be conditioned upon (i) the Plan initially being a qualified plan
under Section 401(a) of the Internal Revenue Code for the Plan
Year, and (ii) the contribution being deductible under Section
404 of the Internal Revenue Code. If, after the Employer's
contribution has been made, it is determined that a condition
described in (i) or (ii) was not satisfied with respect to such
contribution, or that all or a portion of such contribution was
made under a mistake of fact, then the Trustee shall refund to
the Employer within one year of the date the contribution is
remitted to the Trustee, if such contribution is made by reason
of a mistake of fact, or within one year of the denial of
qualification or disallowance of the deduction, the amount of the
contribution that was affected by the mistake of fact, or by a
condition described in (i) or (ii) not being satisfied, subject
to the following rules:
(a) The Trustee shall be under no obligation to make
such refund unless a written direction of the refund signed
by an authorized representative of the Employer, is
submitted to the Trustee.
(b) Earnings attributable to the refundable amount
shall not be refunded, but the refundable amount shall be
reduced by a proportionate share of any losses of the Trust
from the date of crediting by the Trustee to the date of
segregation.
(c) The Trustee shall be under no obligation to verify
that the refund is allowable or timely and shall be entitled
to rely on the Employer's written direction.
10.5 Construction and Severability. Except as otherwise
provided by Federal law, the Plan shall be administered,
construed and enforced according to Virginia law. Each provision
of the Plan shall be considered to be severable from all other
provisions, so that if any provision or any part of a provision
shall be declared void, the remaining provisions shall continue
to be effective.
10.6 Delegation of Authority. Whenever any Employer is
permitted or required to perform any act, such act may be
performed by any officer or other person duly authorized by the
Board.
10.7 Changes in Capital Structure. The existence of the
Plan shall not limit or in any way affect the right of any
Employer to change its capital structure or accounting practices
at any time in whatever manner it may determine to be advisable.
10.8 Receipt of Rollovers and Trustee-to-Trustee Transfers.
(a) Subject to rules established by the Plan
Administrator, the Trustee may receive a transfer of assets
previously held under another tax-qualified plan for the benefit
of a person who is eligible to participate in this Plan. Unless
the Plan Administrator determines otherwise, assets that are
subject to the annuity requirements of Section 417 of the
Internal Revenue Code may not be transferred to this Plan, and
assets that were previously distributed from a plan maintained by
an Employer or a predecessor of an Employer may not be
transferred to this Plan. Transferred assets may be received
directly from the trustee of a tax-qualified plan, or they may be
received as a rollover contribution from a tax-qualified plan or
from an individual retirement account. Any plan from which
assets are received must be a plan qualified under Section 401 of
the Internal Revenue Code at the time of the transfer, and any
rollover individual retirement account must be an individual
retirement account within the meaning of Section 408 of the
Internal Revenue Code at the time of the rollover.
(b) The Trustee shall invest the transferred assets as
part of the Trust Fund. The transferred assets, and the earnings
and losses attributable to them, shall be held in the
Participant's Rollover Account (unless an applicable Appendix
provides otherwise).
(c) The Plan Administrator and the Trustee shall be
fully protected in relying on data, representations, or other
information provided by a Participant or other Employee for the
purpose of determining that the requirements of subsection (a)
have been satisfied.
10.9 Gender and Number. Every pronoun used in the Plan
shall be construed to be of such number and gender as the context
shall require.
10.10 Plan Merger. The Plan Administrator may direct that
one or more other defined contribution plans maintained by an
Employer be merged into this Plan. In the event of such a
merger, the Plan Administrator shall designate the Accounts to
which each Participant's accounts from the prior plan shall be
allocated. Attached to the Plan are one or more Appendices that
explain how the accounts of the prior plans are to be
administered under this Plan.
<PAGE>
SECTION XI
PLAN ADMINISTRATION
11.1 Plan Administrator.
(a) The Plan Administrator shall have responsibility
for administering the Plan and carrying out its provisions. The
Company, by action of its Board, shall appoint the Plan
Administrator, which shall consist of a committee of not less
than three persons. Any member of the Plan Administrator may be
removed and new members may be appointed by action of the Board.
(b) Any person appointed to be a member of the Plan
Administrator shall give his acceptance in writing to the
Company. Any member of the Plan Administrator may resign by
delivering his written resignation to the Company, and such
resignation shall be effective upon such delivery or upon any
date specified in the notice.
(c) For purposes of administering the Plan, the Plan
Administrator may delegate any or all of its duties, powers and
responsibilities to one or more persons, entities or
subcommittees, whose members may or may not be members of the
Plan Administrator.
11.2 Responsibilities. The Plan Administrator shall have
responsibility and authority to take all action and to make all
decisions necessary or proper to carry out the Plan. The
determination of the Plan Administrator as to any question
involving the general administration and interpretation of the
Plan shall be final, conclusive and binding. Any discretionary
actions to be taken under the Plan by the Plan Administrator with
respect to the classification of Employees, Participants,
Beneficiaries, contributions, or benefits shall be uniform in
nature and applicable to all persons similarly situated. Without
limiting the generality of the foregoing, the Plan Administrator
shall have the power, duty and express discretionary authority:
(a) To require any person to furnish such information
as it may request for the purpose of the proper
administration of the Plan as a condition to receiving any
benefits under the Plan;
(b) To make and enforce such rules and regulations and
prescribe the use of such forms as it shall deem necessary
for the efficient administration of the Plan;
(c) To interpret the Plan, and to resolve any
ambiguity or inconsistency;
(d) To decide questions concerning the eligibility of
any Employee to become a Participant;
(e) To employ counsel, accountants, specialists,
agents and such clerical, medical and other services as the
Plan Administrator may require in carrying out the
provisions of the Plan;
(f) To determine the manner in which the assets of the
Plan shall be disbursed; and
(g) To authorize one or more persons to make any
payment on its behalf, or to execute or deliver any
instrument.
(h) To appoint an independent fiduciary to carry out
activities relating to the Company Stock Fund if the Trustee
so requests in accordance with Section 9.10(b).
The Plan Administrator shall have the power to modify by
administrative practice the time periods set forth in the Plan
for making elections and applications with respect to
withdrawals, distributions, Plan loans, investment directions,
and other matters. The Plan Administrator shall exercise its
power in a uniform and nondiscriminatory manner in accordance
with applicable law.
11.3 Delegation of Duties:
(a) To the extent permitted by law, the Plan
Administrator and any person to whom it may delegate any duty or
power in connection with the Plan and the Employer and its
officers and directors shall be entitled to rely conclusively
upon, and shall be fully protected in any action taken or
suffered by them in good faith in the reliance upon, any counsel,
accountant, other specialist or other person selected by the Plan
Administrator, or in reliance upon any tables, valuations,
certificates, opinions or reports that shall be furnished by any
of them or by the Trustee. To the extent permitted by law, no
member of the Plan Administrator or any subcommittee, nor the
Employer or its officers and directors, shall be liable for any
neglect, omission or wrongdoing of the Trustee or of any other
person to whom powers, duties or responsibilities with respect to
the Plan have been delegated.
(b) The Plan Administrator may authorize one or more
persons to make any payment in its behalf, or to execute or
deliver any instrument.
11.4 Expenses. All expenses that shall arise in connection
with the administration of the Plan, including, but not limited
to, the compensation of the Trustee, administrative expenses and
other proper charges and disbursements of the Trustee, and
compensation and other expenses and charges of any counsel,
accountant, specialist, agent or other person who shall be
employed by the Plan Administrator in connection with the
administration thereof, shall be charged to the Trust Fund and
paid by the Trustee unless paid by the Employer. Participants'
Accounts may be charged for part or all of the expenses of
administration of the Plan, consistent with applicable law.
11.5 Compensation. Unless otherwise agreed to by the
Employer, the members of the Plan Administrator and any
subcommittee shall serve without compensation for services as
such, but all reasonable expenses incurred in the performance of
their duties shall be paid from the Trust Fund. Unless otherwise
determined by the Company or required by law, no officer of the
Company and no member of the Plan Administrator or any
subcommittee shall be required to give any bond or other security
in any jurisdiction.
11.6 Facility of Payment. Whenever, in the Plan
Administrator's opinion, a person who is entitled to receive a
benefit from the Plan (or an installment payment of the benefit)
is under a legal disability, or other incapacity that prevents
him from managing his financial affairs, the Plan Administrator
may direct the Trustee to make payments to the person, or to his
legal representative, or to a relative or friend of the person
for his benefit, or the Plan Administrator may direct the Trustee
to apply the payment for the benefit of the person. Any payment
of a benefit or any installment payment of a benefit in
accordance with the provisions of this Section shall be a
complete discharge of any liability for the making of such
payment under the provisions of the Plan.
11.7 Benefit Claims Procedure.
(a) If any person makes a claim regarding the amount
of any distribution or its method of payment, such person shall
present the reason for the claim in writing to the Plan
Administrator. The Plan Administrator, in its discretion, may
request a meeting to clarify any matters that it deems pertinent.
A claimant who is denied a claim will, within 90 days of its
receipt of the claim, be given notice by the Plan Administrator
that describes:
(i) The specific reason or reasons for the
denial;
(ii) The specific reference to the Plan provisions
on which the denial is based;
(iii) A list of additional material or information
(if any) that is necessary for the claimant to perfect
the claim, with an explanation of why the additional
information is needed;
(iv) An explanation of the Plan's claim procedure;
and
(v) An explanation that the claimant may request
a review of his claim denial by the Plan Administrator
by filing a written request with the Plan Administrator
not more than 60 days after receiving written notice of
the denial and that the claimant, or his
representative, before such review, may review
pertinent documents and submit issues and comments in
writing.
(b) If a review of the initial denial is requested and
the claim is again denied, the Plan Administrator shall again
give written notice within 60 days of its decision to deny the
claim to the claimant setting forth items (i) and (ii) above.
All final interpretations, determinations and decisions of the
Plan Administrator with respect to any matter hereunder shall be
conclusive and binding upon the Employer, Participants,
Employees, and all other persons claiming interest under the
Plan, except as otherwise provided by ERISA.
11.8 Domestic Relations Orders.
(a) If the Trustee or the Plan Administrator receives
a domestic relations order that purports to require the payment
of a Participant's benefits to a person other than the
Participant, the Plan Administrator shall take the following
steps:
(i) If benefits are in pay status, the Plan
Administrator shall direct the Trustee to withhold
payment and to account separately for the amounts that
will be payable to the Alternate Payees (defined below)
if the order is a Qualified Domestic Relations Order
(defined below).
(ii) The Plan Administrator shall promptly notify
the named Participant and any Alternative Payees of the
receipt of the domestic relations order and of the Plan
Administrator's procedures for determining if the order
is a Qualified Domestic Relations Order.
(iii) The Plan Administrator shall determine
whether the order is a Qualified Domestic Relations
Order under the provisions of Internal Revenue Code
Section 414(p).
(iv) The Plan Administrator shall notify the named
Participant and any Alternate Payees of its
determination as to whether the order meets the
requirements of a Qualified Domestic Relations Order.
(b) If, within 18 months beginning on the date the
first payment would be made under the domestic relations order
(the 18-Month Period), the order is determined to be a Qualified
Domestic Relations Order, the Plan Administrator shall direct the
Trustee to pay the specified amounts to the persons entitled to
receive the amounts pursuant to the order.
(c) If, within the 18-Month Period, (i) the order is
determined not to be a Qualified Domestic Relations Order or
(ii) the issue as to whether the order is a Qualified Domestic
Relations Order has not been resolved, the Plan Administrator
shall direct the Trustee to pay the specified amounts to the
Participant or other person who would have been entitled to such
amounts if there had been no order.
(d) If an order is determined to be a Qualified
Domestic Relations Order after the end of the 18-Month Period,
the determination shall be applied prospectively only.
(e) A Qualified Domestic Relations Order shall not
give an Alternate Payee any greater rights with respect to
distributions, investments or other matters than a Participant
would have with respect to the Account. Distributions shall be
made to Alternate Payees in accordance with the Plan, the
Qualified Domestic Relations Order and applicable law.
(f) For the purposes of this Section, the following
terms shall have the following definitions:
(i) Alternate Payee - Any spouse, former spouse,
child or other dependent of a Participant who is
recognized by a domestic relations order as having a
right to all or a portion of the benefits payable under
the Plan to the Participant.
(ii) Qualified Domestic Relations Order - Any
domestic relations order or judgment that meets the
requirements set forth in Internal Revenue Code Section
414(p).
<PAGE>
SECTION XII
AMENDMENT OF PLAN
12.1 Reserved Power to Modify, Suspend or Terminate. As
future conditions affecting this Plan cannot be foreseen, the
Company, through action of the Board, reserves the right to
amend, modify, suspend, or terminate the Plan. Any amendment may
affect future Participants, but may not diminish the balances in
the Accounts of any Participant or Beneficiary as they existed
immediately before the effective date of the amendment.
12.2 Amendment Requiring Shareholder Approval. If and to
the extent required to comply with Rule 16b-3, any amendment to
the Plan made prior to September 1, 1994 that would (a)
materially increase the benefits accruing to Participants under
the Plan, (b) materially increase the number of securities that
may be issued under the Plan, or (c) materially modify the
requirements as to eligibility for participation in the Plan,
must be submitted to the shareholders of the Company for
approval. Notwithstanding the foregoing, the Board may increase
the number of investment funds offered under the Plan without
first obtaining the approval of the shareholders of the Company.
If the September 1, 1994 effective date of the current proposed
changes to Rule 16b-3 is postponed, the September 1, 1994 date
referred to above shall be deemed to refer to such postponed
effective date of the current proposed changes to Rule 16b-3.
12.3 Distribution on Termination of Plan. If the Plan is
terminated or if there is a complete discontinuance of
contributions to the Plan, with or without notice, each
Participant's interest in his Accounts shall become fully vested.
A partial termination of the Plan, with or without notice, shall
be deemed to be a termination of the Plan resulting in full
vesting as to the part of the Plan that is terminated. In the
event of a termination of the Plan, Participants' Accounts shall
be distributed upon a date determined by the Plan Administrator.
<PAGE>
SECTION XIII
ADOPTION OF PLAN BY AFFILIATED COMPANIES
13.1 Adoption of the Plan. Any Affiliated Company may
become an Employer, with the approval of the Board, by adopting
the Plan for its Employees. An Affiliated Company that becomes a
party to the Plan shall promptly deliver to the Trustee a
certified copy of the resolutions or other documents evidencing
its adoption of the Plan. An Affiliated Company adopting the
Plan may determine whether and to what extent periods of
employment with the Affiliated Company before the Affiliated
Company adopts the Plan shall be included as Service under the
Plan, and an Affiliated Company may exclude certain classes of
Employees from eligibility to participate in the Plan, as long as
the exclusion does not result in prohibited discrimination under
the Internal Revenue Code.
13.2 Withdrawal. An Employer may withdraw from the Plan at
any time by giving the Plan Administrator advance notice in
writing of its intention to withdraw. Upon receipt of notice of
a withdrawal, the Plan Administrator shall certify to the Trustee
the equitable share of the withdrawing Employer in the Trust
Fund, and the Trustee shall set aside from the Trust Fund such
securities and other property as it shall, in its sole
discretion, deem to be equal in value to the withdrawing
Employer's equitable share. If the Plan is to be terminated with
respect to the withdrawing Employer, the amount set aside shall
be administered according to Section 10.2. If the Plan is not to
be terminated with respect to the withdrawing Employer, the
Trustee shall turn over the withdrawing Employer's equitable
share to a trustee designated by the withdrawing Employer, and
the securities and other property shall thereafter be held and
invested as a separate trust of the withdrawing Employer.
13.3 Sale of Employer or Division. If substantially all of
the stock or assets of an Employer or a division of an Employer
are sold, the Accounts of participants who are Employees of the
affected Employer or division may be transferred to a tax-
qualified defined contribution plan or the purchaser. If such a
transfer is made, the Accounts of the affected Participants shall
be transferred to a tax-qualified plan of the purchaser, and the
affected Participants shall no longer be entitled to any benefits
under this Plan. The transfer of Accounts shall be full
satisfaction of this Plan's obligation to provide benefits to the
affected Participants and their Beneficiaries.
<PAGE>
SECTION XIV
TOP HEAVY
14.1 Top Heavy. If the Plan is Top Heavy for any Plan Year,
then the provisions of this Section 14 shall apply,
notwithstanding anything in the Plan to the contrary. The
determination of Top Heavy status shall be made as follows:
(a) "Top Heavy" plans are one or more plans that are
qualified under Internal Revenue Code Section 401(a) and
under which the sum of the present value of accrued benefits
of Key Employees under defined benefit plans and the account
balances of Key Employees under defined contribution plans
exceeds 60% of the sum of the present value of accrued
benefits and account balances of all employees, former
employees (except for former employees who perform no
services for the Company for the five-year period ending on
the determination date), and beneficiaries in the plans.
The determination date is the date on which it is determined
whether this Plan is Top Heavy. Such determination shall be
made as of the last day of the immediately preceding Plan
Year or, in the case of the first Plan Year, the last day of
such Plan Year. The determination shall be made in
accordance with Internal Revenue Code Section 416(g). The
account balances under the Plan shall be valued as of each
Valuation Date. Actuarial equivalence and benefit accruals
shall be determined on the basis of the definition of
actuarial equivalence and accrued benefits used for purposes
of the James River Corporation of Virginia Retirement Plan
for Salaried and Other Non-Bargaining Unit Employees, as in
effect at the time. If the Company and Affiliated Companies
maintain more than one plan qualified under Internal Revenue
Code Section 401, then (a) each such plan in which a Key
Employee is a participant and (b) each such plan that must
be taken into account in order for a plan described in the
preceding clause to meet the requirements of Internal
Revenue Code Section 401(a)(4) or 410 shall be aggregated
with this Plan to determine whether the plans, as a group,
are Top Heavy. The Company and Affiliated Companies may, in
their discretion, aggregate any other qualified plan with
this Plan to the extent that such aggregation is permitted
by Internal Revenue Code Section 416(g). The Company will
determine whether the Plan is Top Heavy. For purposes of
the preceding sentence, a Plan includes a terminated plan
which was maintained by the Company within the last five
years ending on the determination date and would otherwise
be required to be aggregated with this Plan.
(b) A Key Employee is an Employee, former Employee or
Beneficiary who, at any time during the Plan Year or during
any of the four preceding Plan Years, is or was (i) an
officer of the Company or an Affiliated Company whose annual
Taxable Compensation from the Company and Affiliated Company
exceeds 50% of the amount in effect under Internal Revenue
Code Section 415(b)(1)(A) for the Plan Year, (ii) one of the
ten Employees who own (or are considered as owning, within
the meaning of Section 318 of the Internal Revenue Code) at
least 0.5% and the largest interests in the Company or an
Affiliated Company and whose annual Taxable Compensation
from the Company and Affiliated Companies is at least equal
to the amount in effect under Section 415(c)(1)(A) of the
Internal Revenue Code for the Plan Year, (iii) a 5% owner of
the Company or an Affiliated Company, or (iv) a 1% owner of
the Company or an Affiliated Company whose annual Taxable
Compensation from the Company and Affiliated Companies
exceeds $150,000. The amount in effect under Section
415(c)(1)(A) of the Internal Revenue Code for a Plan Year is
the $30,000 amount described in Section 5.3 of the Plan, as
adjusted. The determination of Key Employee status shall be
made in accordance with Section 416(i) of the Internal
Revenue Code, and the number of persons who are considered
Key Employees shall be limited as provided under that
Section.
14.2 Minimum Allocation. For any Plan Year in which the
Plan is Top Heavy, either a minimum benefit or a minimum
contribution shall be provided for each Participant who is not a
Key Employee and who is not covered by a collective bargaining
agreement under which retirement benefits were the subject of
good faith bargaining. Unless the minimum benefit described in
Section 416(c)(1) of the Internal Revenue Code is provided under
a defined benefit plan, the amount of Company and Affiliated
Company contributions and forfeitures that are allocated under
one or more plans maintained by the Company or Affiliated
Companies to the account of each Participant described above who
is an Employee on the last day of the Plan Year shall be at least
equal to 5% of the Participant's Taxable Compensation. This
minimum contribution shall be made under other plans maintained
by the Company or Affiliated Companies before it is made under
this Plan. The Company shall have discretion to contribute an
amount needed to satisfy this minimum allocation.
14.3 Compensation Limitation. For any Plan Year in which
this Plan is Top Heavy, the amount of a Participant's Taxable
Compensation that may be taken into account under the Plan shall
not exceed $150,000 (or an adjusted amount pursuant to Internal
Revenue Code Sections 401(a)(17) and 415(d)). If the Participant
is a 5% owner or is one of the 10 highly compensated employees,
as defined in Internal Revenue Code Section 414(q), earning the
most Section 415 Compensation, such limitation shall be
calculated by aggregating the Taxable Compensation of the
Participant and any "family member" of such Participant who
participates in the Plan. For purposes of this paragraph, the
term "family member" means the Participant's spouse and lineal
descendants who have not attained age 19 by the close of the Plan
Year.
14.4 Benefit and Contribution Limitations. For Plan Years
in which the Plan is Top Heavy, the 1.25 amount in Section 5.3 of
the Plan shall be changed to 1.0 unless:
(a) The sum of the present value of accrued benefits
and account balances of Key Employees under plans aggregated
pursuant to Section 14.1(a) does not exceed 90% of the total
present value of accrued benefits and account balances of
all participants in the plans, and
(b) The minimum contribution described in Section 14.2
of the Plan is increased to 7-1/2% of the Participant's
Taxable Compensation.
IN WITNESS WHEREOF, the Company has caused this Plan to be
executed this 25th day of May, 1994.
JAMES RIVER CORPORATION OF
VIRGINIA
By/s/ Daniel J. Girvan
<PAGE>
APPENDIX A
MERGER OF THE
JAMES RIVER II
SALARIED EMPLOYEES RETIREMENT SAVINGS PLAN
INTO THE STOCKPLUS INVESTMENT PLAN
The James River II Salaried Employees Retirement Savings
Plan (the "JRII Plan") will be merged into the StockPlus
Investment Plan as of July 1, 1994. Contributions to the JRII
Plan were frozen in 1986. The following special provisions
relate to accounts transferred from the JRII Plan:
1. All accounts in the JRII Plan immediately before
July 1, 1994 shall be transferred to this Plan as of July 1, 1994
and shall be administered according to the provisions of this
Plan, subject to the special provisions described below.
Employees and former employees who have accounts in the JRII Plan
immediately before July 1, 1994 are referred to as "Former JRII
Employees".
2. A Former JRII Employee's accounts under the JRII Plan
will be held in the following Accounts for the Former JRII
Employee under this Plan:
(a) The JRII Plan accounts attributable to before-tax
contributions shall be held in the Before-Tax Contributions
Account.
(b) The JRII Plan accounts attributable to after-tax
contributions shall be held in the After-Tax Contributions
Account.
(c) The JRII Plan account attributable to matching
contributions shall be held in the Before-Tax Matching
Contributions Account (except as described in subsection
3(b) below).
(d) The JRII Plan account attributable to rollover
contributions shall be held in the Rollover Account.
3. Each Former JRII Employee's Accounts shall be invested
according to the terms of this Plan, subject to the following
rules:
(a) A Former JRII Employee may direct the investment
of the portion of his Before-Tax Contributions Account that
is attributable to assets transferred from the JRII Plan
into any of the investment funds described in Section 9.1,
without regard to whether the Former JRII Employee has
attained age 57, subject to subsection (c) below.
(b) If the Former JRII Employee had the right to
invest his matching contributions account under the JRII
Plan in investments other than Company Stock, such matching
contributions shall be held in the Participant's After-Tax
Matching Contributions Account. The Former JRII Employee
may direct the investment of the portion of his After-Tax
Matching Contributions Account that is attributable to such
JRII Plan matching contributions in any of the investment
funds described in Section 9.1, subject to subsection (c)
below.
(c) Notwithstanding anything in the Plan to the
contrary, the investment fund consisting of an Executive
Life Insurance Company guaranteed investment contract (Fixed
Income Fund A) shall be considered a "frozen" investment
fund, and no amounts may be transferred to or from Fixed
Income Fund A. No loans, withdrawals or distributions may
be made from Fixed Income Fund A. If a Former JRII Employee
(or his Beneficiary or an Alternate Payee) elects a
distribution from his Accounts and a portion of the elected
amount is invested in Fixed Income Fund A, only the portion
of his Accounts that is not invested in Fixed Income Fund A
may be distributed. These restrictions on Fixed Income Fund
A shall remain in effect until such time as cash payments
are made from Executive Life Insurance Company (or a
successor) to Fixed Income Fund A in amounts available and
sufficient for distribution to Former JRII Employees.
(d) In other respects, a Former JRII Employee's
Accounts may be invested in the manner described for those
Accounts under Section IX of the Plan.
4. Each Former JRII Employee's Accounts shall be held and
administered according to the terms of this Plan, subject to the
following rules:
(a) If a Former JRII Employee has a loan from the JRII
Plan that is outstanding as of July 1, 1994, the loan will
remain outstanding under the merged Plan, until paid or
otherwise satisfied according to its terms. In other
respects, Plan loans will be governed by the provisions of
Section 7.4 of this Plan.
(b) As of the end of any Plan Year quarter, a Former
JRII Employee who has attained age 59-1/2 may elect to withdraw
any whole percentage (but not less than 10%) of the Former
JRII Employee's interest in the portion of his Before-Tax
Contributions Account that is attributable to before-tax
contributions made under the JRII Plan. The withdrawal
shall be made pursuant to the administrative procedures
described in Section 7.2; provided that withdrawals under
this Section 4(b) may only be made as of the end of a Plan
Year quarter (March 31, June 30, September 30 or December
31).
(c) If a Former JRII Employee received a withdrawal
from the JRII Plan before April 1, 1981 and repays to the
Plan in a lump sum an amount equal to the portion of the
withdrawal that was attributable to employee contributions
allocated to the basic after-tax account, the Employer shall
restore to the Participant's Account the amount of the
forfeiture, without adjustments. The amount of the
repayment shall be credited to the Former JRII Employee's
Matching Contributions Account. The repayment must be made
before the date on which the Participant completes a period
of severance of at least 12 consecutive calendar months
ending before January 1, 1985 or a period of severance of 60
months or more ending on or after January 1, 1985.
5. The provisions of this Plan are intended to comply with
the requirements of Section 411(d)(6) of the Internal Revenue
Code with respect to the accounts transferred from the JRII Plan.
The Plan shall be administered consistent with the requirements
of Section 411(d)(6) and the regulations thereunder.
<PAGE>
