<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 6, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
KIMBERLY-CLARK CORPORATION
(Exact name of Registrant as specified in its charter)
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DELAWARE 39-0394230
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
P.O. BOX 619100 75261-9100
DALLAS, TEXAS (Zip Code)
(Address of Principal Executive Offices)
</TABLE>
KIMBERLY-CLARK CORPORATION RETIREMENT CONTRIBUTION PLAN
KIMBERLY-CLARK CORPORATION RETIREMENT CONTRIBUTION EXCESS BENEFIT PROGRAM
(Full Title of the Plans)
O. GEORGE EVERBACH
SENIOR VICE PRESIDENT -- LAW AND GOVERNMENT AFFAIRS
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(972) 281-1200
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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=====================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT PRICE FEE
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Common Stock, $1.25 par value(1)........ 1,000,000 shares(2) $96.875 $96,875,000 $29,357(3)
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Preferred Stock Purchase Rights(1)...... 1,000,000 rights (4) (4) (4)
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Interests in Retirement Contribution
Excess Benefit Program(1)............. $10,000,000 100% $10,000,000 $3,030
=====================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered and sold pursuant to the Plans.
(2) The shares of common stock being registered consist of shares to be acquired
by the Trustee pursuant to the Kimberly-Clark Corporation Retirement
Contribution Plan for the accounts of participants.
(3) Estimated solely for the purpose of calculating the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended, pursuant
to Rule 457(c) thereunder, based on $96.875, the average of the high and low
prices of the common stock on December 3, 1996, as reported in the
consolidated reporting system.
(4) The preferred stock purchase rights initially are attached to and trade with
the shares of common stock being registered hereby. Value attributable to
such rights, if any, is reflected in the market price of the common stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Registrant with the
Securities and Exchange Commission (the "SEC") are incorporated herein by
reference:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995;
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996.
3. The Registrant's Current Report on Form 8-K/A dated December 12,
1995;
4. The description of the Registrant's Common Stock contained in the
Joint Proxy Statement/Prospectus constituting a part of the Registrant's
Registration Statement on Form S-4 (Registration No. 33-64063); and
5. The description of the Registrant's Preferred Stock Purchase Rights
contained in Registration Statements on Form 8-A and Form 8-A/A filed by
the Registrant with the SEC on June 21, 1988 and June 13, 1995,
respectively.
All documents filed by the Registrant and the Plans pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference herein and to be a part hereof from the
dates of filing of such reports and documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently
filed document which also is incorporated or deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's By-laws (the "By-Laws") provide, among other things, that
the Registrant shall (i) indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Registrant) by reason of the
fact that he is or was a Director or officer of the Registrant, or is or was
serving at the request of the Registrant as a Director or officer of another
corporation, or, in the case of a Director or officer of the Registrant, is or
was serving as an employee or agent of a partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, and (ii) indemnify any
person who was or is
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a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Registrant to procure a
judgment in its favor by reason of the fact that he is or was a Director or
officer of the Registrant, or is or was serving at the request of the Registrant
as a Director or officer of another corporation, or, in the case of a Director
or officer of the Registrant, is or was serving as an employee or agent of a
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Registrant and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Registrant unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper. Notwithstanding the foregoing, the
Registrant is not required to indemnify any Director or officer of the
Registrant in connection with a proceeding (or portion thereof) initiated by
such Director or officer against the Registrant or any Directors, officers or
employees thereof unless (i) the initiation of such proceeding (or portion
thereof) was authorized by the Board of Directors of the Registrant or (ii)
notwithstanding the lack of such authorization, the person seeking
indemnification is successful on the merits. The By-Laws further provide that
the indemnification provided therein shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled.
Section 145 of the General Corporation Law of the State of Delaware
authorizes indemnification by the Registrant of Directors and officers under the
circumstances provided in the provisions of the By-Laws described above, and
requires such indemnification for expenses actually and reasonably incurred to
the extent a Director or officer is successful in the defense of any action, or
any claim, issue or matter therein.
The Registrant has purchased insurance which purports to insure the
Registrant against certain costs of indemnification which may be incurred by it
pursuant to the By-Laws and to insure the officers and Directors of the
Registrant, and of its subsidiary companies, against certain liabilities
incurred by them in the discharge of their functions as such officers and
directors except for liabilities resulting from their own malfeasance.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
(a) The following is a list of Exhibits included as part of this
Registration Statement. The Registrant agrees to furnish supplementally a copy
of any omitted schedule to the SEC upon request. Items marked with an asterisk
are filed herewith.
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4.1 -- Restated Certificate of Incorporation of the Registrant, dated
December 12, 1995, is hereby incorporated by reference to Exhibit
No. (3) to the Quarterly Report on Form 10-Q of the Registrant
for the quarter ended June 30, 1996.
4.2* -- By-laws of the Registrant, as amended November 22, 1996.
</TABLE>
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4.3 -- Rights Agreement dated as of June 21, 1988, as amended and restated
as of June 8, 1995, between the Registrant and The First National
Bank of Boston, as Rights Agent, is hereby incorporated by reference
to Exhibit No. 1 to the Registration Statement on Form 8-A/A of the
Registrant filed with the SEC on June 13, 1995.
4.4* -- Retirement Contribution Plan.
4.5* -- Retirement Contribution Excess Benefit Program.
23.1* -- Consent of Deloitte & Touche LLP.
23.2* -- Consent of Coopers & Lybrand L.L.P.
23.3* -- Consent of Price Waterhouse LLP.
24* -- Powers of Attorney.
</TABLE>
(b) The Registrant will submit or has submitted the Plans and any
amendments thereto to the Internal Revenue Service ("IRS") in a timely manner
and has made or will make all changes required by the IRS in order to qualify
the Plans.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
SEC by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
The Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irving, State of Texas, on December 6, 1996.
KIMBERLY-CLARK CORPORATION
By: /s/ WAYNE R. SANDERS
---------------------------
Wayne R. Sanders
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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/s/ WAYNE R. SANDERS Chairman of the Board and December 6, 1996
------------------------ Chief Executive Officer
Wayne R. Sanders and Director (principal
executive officer)
/s/ JOHN W. DONEHOWER Senior Vice President and December 6, 1996
------------------------ Chief Financial Officer
John W. Donehower (principal financial
officer)
/s/ RANDY J. VEST Vice President and December 6, 1996
------------------------ Controller (principal
Randy J. Vest accounting officer)
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DIRECTORS
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* *
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John F. Bergstrom Louis E. Levy
* *
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Pastora San Juan Cafferty Frank A. McPherson
* *
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Paul J. Collins Linda Johnson Rice
* *
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Robert W. Decherd Wolfgang R. Schmitt
* *
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William O. Fifield Randall L. Tobias
*
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Claudio X. Gonzalez
December 6, 1996
*By: /s/ O. GEORGE EVERBACH
--------------------------------
O. George Everbach
Attorney-in-Fact
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The Plans
Pursuant to the requirements of the Securities Act of 1933, as amended,
Kimberly-Clark Corporation, as Plan Administrator of the Plans, has duly caused
this Registration Statement to be signed by the undersigned, thereunto duly
authorized, in the City of Knoxville, State of Tennessee, on the 6th day of
December, 1996.
KIMBERLY-CLARK CORPORATION
RETIREMENT CONTRIBUTION PLAN and
KIMBERLY-CLARK CORPORATION
RETIREMENT CONTRIBUTION
EXCESS BENEFIT PROGRAM
(The Plans)
By: /s/ BRUCE J. OLSON
---------------------------------
Bruce J. Olson
Vice President -- Corporate Services
Kimberly-Clark Corporation
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EXHIBIT INDEX
The following is a list of Exhibits included as part of this Registration
Statement. Items marked with an asterisk are filed herewith.
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NO. DESCRIPTION OF EXHIBIT
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4.1 -- Restated Certificate of Incorporation of the Registrant, dated
December 12, 1995, is hereby incorporated by reference to Exhibit
No. (3) to the Quarterly Report on Form 10-Q of the Registrant for
the quarter ended June 30, 1996.
4.2* -- By-laws of the Registrant, as amended November 22, 1996.
4.3 -- Rights Agreement dated as of June 21, 1988, as amended and restated
as of June 8, 1995, between the Registrant and The First National
Bank of Boston, as Rights Agent, is hereby incorporated by reference
to Exhibit No. 1 to the Registration Statement on Form 8-A/A of the
Registrant filed with the SEC on June 13, 1995.
4.4* -- Retirement Contribution Plan.
4.5* -- Retirement Contribution Excess Benefit Program.
23.1* -- Consent of Deloitte & Touche LLP.
23.2* -- Consent of Coopers & Lybrand L.L.P.
23.3* -- Consent of Price Waterhouse LLP.
24* -- Powers of Attorney.
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<PAGE> 1
EXHIBIT 4.2
BY-LAWS
OF
KIMBERLY-CLARK CORPORATION
AS AMENDED
NOVEMBER 22, 1996
WITH EXCERPTS FROM THE EMERGENCY PROVISIONS OF
THE DELAWARE GENERAL CORPORATION LAW APPENDED
<PAGE> 2
TABLE OF CONTENTS*
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PAGE
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Capital Stock
1. Certificates....................................................... 1
2. Record Ownership................................................... 1
3. Transfer........................................................... 1
4. Lost Certificates.................................................. 1
5. Transfer Agent; Registrar.......................................... 1
6. Record Date; Closing Transfer Books................................ 2
Meetings of Stockholders
7. Annual............................................................. 2
8. Special............................................................ 2
9. Notice............................................................. 2
10. Quorum............................................................. 2
11. Conduct of Meetings................................................ 3
12. Voting............................................................. 4
13. Inspectors of Election............................................. 4
14. List of Stockholders............................................... 4
Board of Directors
15. Resignation........................................................ 5
16. Annual Meeting..................................................... 5
17. Regular Meetings................................................... 5
18. Special Meetings................................................... 5
19. Telephonic Meetings................................................ 5
20. Quorum............................................................. 5
21. Action Without Meeting............................................. 6
22. Organization....................................................... 6
23. Compensation....................................................... 6
24. Independent Directors.............................................. 6
Committees of the Board
25. Standing and Other Committees...................................... 6
26. Procedure.......................................................... 7
27. Audit Committee.................................................... 7
28. Compensation Committee............................................. 7
29. Executive Committee................................................ 7
30. Nominating Committee............................................... 7
31. Alternates; Vacancies in Committees................................ 8
Officers
32. Designation; Election; Qualification; Term......................... 8
33. Duties............................................................. 8
34. Resignation; Removal; Vacancies.................................... 8
35. Chief Executive Officer............................................ 8
36. Chairman of the Board, Vice Chairman of the Board and President.... 9
37. Vice Presidents.................................................... 9
38. Chief Financial Officer............................................ 9
39. Controller......................................................... 10
40. Secretary.......................................................... 10
41. Treasurer.......................................................... 10
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TABLE OF CONTENTS* -- (CONTINUED)
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PAGE
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Miscellaneous
42. Offices............................................................ 11
43. Seal............................................................... 11
44. Fiscal Year........................................................ 11
45. Annual Report...................................................... 11
46. Indemnification of Directors and Officers.......................... 11
47. Reliance on Records................................................ 12
48. Inspection of Books................................................ 13
49. Transactions with the Corporation.................................. 13
50. Ratification....................................................... 13
51. Voting of Stocks................................................... 13
52. Notice............................................................. 14
53. Waiver of Notice................................................... 14
54. Dispensing with Notice............................................. 14
55. Amendments......................................................... 14
Emergency Provisions from para.110 Delaware General Corporation Law........ 14
</TABLE>
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* This Table of Contents has not been adopted by the Board of Directors as part
of the By-Laws of the Corporation, but is provided solely for the convenience
of the reader.
<PAGE> 4
BY-LAWS
OF
KIMBERLY-CLARK CORPORATION
As Amended Through November 22, 1996
Note: For convenience, the masculine has been used in these By-Laws with the
intention that it include the feminine as well.
CAPITAL STOCK
1. CERTIFICATES
Every stockholder shall be entitled to have a certificate in such form as
the Board shall from time to time approve, signed by the Chairman of the Board,
a Vice Chairman of the Board, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
certifying the number of shares owned by him. Any of or all the signatures on
the certificate and the corporate seal may be facsimiles. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue. While the corporation is authorized to issue
more than one class of stock or more than one series of any class, there shall
be set forth on the face or back of each certificate issued a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof of the corporation and
the qualifications, limitations or restrictions of such preferences and/or
rights.
2. RECORD OWNERSHIP
The name and address of the holder of each certificate, the number of
shares represented thereby, and the date of issuance thereof shall be recorded
in the corporation's books and records. The corporation shall be entitled to
treat the holder of record of any share of stock as the holder in fact thereof,
and accordingly shall not be bound to recognize any equitable or other claim to
or interest in any share on the part of any other person, whether or not it
shall have express or other notice thereof, except as required by law.
3. TRANSFER
Transfer of stock shall be made on the books of the corporation only by
direction of the person named in the certificate or his attorney, lawfully
constituted in writing, and only upon the surrender for cancellation of the
certificate therefor and a written assignment of the shares evidenced thereby.
4. LOST CERTIFICATES
Any person claiming a stock certificate in lieu of one lost or destroyed
shall give the corporation an affidavit as to his ownership of the certificate
and of the facts which go to prove its loss or destruction. He shall also, if
required by the Board, give the corporation a bond or other indemnification, in
such form as may be approved by the Board, sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss of the certificate or the issuance of a new certificate.
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5. TRANSFER AGENT; REGISTRAR
The corporation shall maintain one or more transfer offices or agencies,
each in charge of a transfer agent designated by the Board, where the shares of
stock of the corporation shall be transferable. The corporation shall also
maintain one or more registry offices, each in charge of a registrar designated
by the Board, where such shares of stock shall be registered. The same entity
may be both transfer agent and registrar.
6. RECORD DATE; CLOSING TRANSFER BOOKS
So that the corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders, or any adjournment thereof, or
entitled to express consent to corporate action in writing without a meeting as
provided in Article VI of the Certificate of Incorporation, or entitled to
receive payment of any dividend or other distribution or allotment of rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of capital stock, or for the purpose of any other lawful action, the Board may
fix a record date which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board and which record date
shall not be more than sixty days nor less than ten days before the date of such
meeting, nor more than ten days from the date upon which the resolution fixing
the record date is adopted by the Board in the case of a determination of the
stockholders entitled to express consent to corporate action without a meeting,
nor more than sixty days before any other action, and only such stockholders as
shall be stockholders of record on the date so fixed shall be entitled to such
notice of and to vote at such meeting, or to give such consent, or to receive
such dividend or other distribution or allotment of rights, or to exercise such
rights, or to take such other lawful action, as the case may be, notwithstanding
any transfer of any stock on the books of the corporation after any such record
date fixed as aforesaid. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board may fix a new record date for
the adjourned meeting.
MEETINGS OF STOCKHOLDERS
7. ANNUAL
The annual meeting of stockholders for the election of directors and the
transaction of such other business as may properly be brought before the meeting
shall be held on the third Thursday in April in each year, or on such other day,
which shall not be a legal holiday, as shall be determined by the Board. The
annual meeting shall be held at such place and hour, within or without the State
of Delaware, as shall be determined by the Board. The day, place and hour of
each annual meeting shall be specified in the notice of the annual meeting. The
meeting may be adjourned by the chairman of the meeting from time to time and
place to place. At any adjourned meeting the corporation may transact any
business which might have been transacted at the original meeting. In accordance
with the provisions of applicable law, the Board acting by resolution may
postpone and reschedule any previously scheduled annual meeting of stockholders.
8. SPECIAL
Special meetings shall be held at such place, within or without the State
of Delaware, as may from time to time be fixed consistent with the provisions of
Article VI of the Certificate of Incorporation. In the event no such place has
been fixed, special meetings shall be held at the offices of the corporation
located in Dallas County, Texas. The meeting may be adjourned by the chairman of
the meeting from time to time and place to place. At any adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. In accordance with the provisions of applicable law, the Board
acting by resolution may postpone and reschedule any previously scheduled
special meeting of stockholders.
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<PAGE> 6
9. NOTICE
Written notice of every meeting of stockholders, stating the place, day,
hour and purposes thereof, shall, except when otherwise required by law, be
mailed at least ten, but not more than sixty days before such meeting to each
stockholder of record entitled to vote thereat.
10. QUORUM
The holders of a majority of the voting power of the issued and outstanding
shares of capital stock of the corporation entitled to vote, present in person
or represented by proxy, shall constitute a quorum at any meeting, except as
otherwise required by law. In the event of lack of a quorum, the chairman of the
meeting or a majority of the voting power of the shares of capital stock present
in person or represented by proxy may adjourn the meeting from time to time
without notice other than announcement at the meeting, until a quorum shall be
obtained. At any such adjourned meeting at which there is a quorum, any business
may be transacted which might have been transacted at the meeting originally
called. The stockholders present at a duly called meeting at which a quorum is
present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
11. CONDUCT OF MEETINGS
(a) The Chief Executive Officer, or in his absence such other officer as
may be designated by the Board, shall be the chairman at stockholders' meetings.
The Secretary of the corporation shall be the secretary at stockholders'
meetings but in his absence the chairman of the meeting may appoint a secretary
for the meeting. The opening and closing of the polls for matters upon which the
stockholders will vote at a meeting shall be announced at the meeting by the
chairman of the meeting. The Board may, to the extent not prohibited by law,
adopt by resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board, the chairman of any
meeting of stockholders shall have the right and authority to prescribe such
rules, regulations or procedures and to do all acts as, in the judgment of the
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board or prescribed by the
chairman of the meeting, may to the extent not prohibited by law include,
without limitation, the following: (i) the establishment of an agenda or order
of business for the meeting; (ii) rules and procedures for maintaining order at
the meeting and the safety of those present; (iii) limitations on attendance at
or participation in the meeting to stockholders of record of the corporation,
their duly authorized and constituted proxies (which shall be reasonable in
number) or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants.
(b) At a meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting in accordance with these
By-Laws. To be properly brought before a meeting, business must (a) be specified
in the notice of the meeting (or any supplement thereto) given by or at the
direction of the Board, (b) otherwise properly be brought before the meeting by
or at the direction of the Board, or (c) otherwise (i) properly be requested to
be brought before the meeting by a stockholder of record entitled to vote in the
election of directors generally, and (ii) constitute a proper subject to be
brought before such meeting. For business to be properly requested to be brought
before an annual meeting of stockholders by a stockholder of record, any
stockholder who intends to bring any matter (other than in connection with the
election of directors) before an annual meeting of stockholders and is entitled
to vote on such matter must deliver written notice of such stockholder's intent
to bring the matter before the annual meeting of stockholders, either by
personal delivery or by United States mail, postage prepaid, to the Secretary of
the corporation. Such notice must be received by the Secretary not less than 75
days nor more than 100 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in
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the event that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 100th day prior to such annual meeting and not later than the
close of business on the later of the 75th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder notice as described above. For purposes of this By-Law 11, "public
announcement" shall mean the date disclosure of the date of the meeting of
stockholders is first made in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service, or in a document
publicly filed by the corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14, or 15(d) of the Securities Exchange Act of 1934, as
amended. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
corporation's notice of meeting.
A stockholder's notice to the Secretary required by this By-Law 11 shall
set forth as to each matter the stockholder proposes to bring before the meeting
of stockholders: (i) a brief description of the business to be brought before
the meeting and the reasons for conducting such business at the meeting; (ii)
the name and address of the stockholder intending to propose such business;
(iii) the number of shares of stock of the corporation beneficially held, either
personally or in concert with others, by the stockholder, and a representation
that the stockholder is a holder of stock of the corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the meeting to
present such proposal; and (iv) any material interest of the stockholder in such
business. No business shall be conducted at a meeting of stockholders except in
accordance with the procedures set forth in this By-Law 11. The chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
the business was not properly brought before the meeting in accordance with the
provisions hereof and, if he should so determine, he shall so declare to the
meeting that any such business not properly brought before the meeting shall not
be transacted.
12. VOTING
Except as otherwise provided in the Certificate of Incorporation, at each
meeting of the stockholders, each holder of shares entitled to vote at such
meeting shall, as to all matters in respect of which such shares have voting
rights, be entitled to one vote in person or by written proxy for each share
held of record by him. No vote upon any matter, except the election of directors
or the amendment of the Certificate of Incorporation, is required to be by
ballot unless demanded by the holders of at least 10% of the voting power of the
shares of capital stock represented and entitled to vote at the meeting. All
motions to introduce a matter for a vote by the stockholders at a meeting
thereof, except for nominations for election as directors recommended by the
Nominating Committee and approved by the Board, shall be seconded prior to a
vote thereon by the stockholders.
A stockholder may authorize another person or persons to act for him as
proxy by transmitting or authorizing the transmission of a telegram, cablegram,
or other means of electronic transmission to the person who will be the holder
of the proxy or to a proxy solicitation firm, proxy support service organization
or like agent duly authorized by the person who will be the holder of the proxy
to receive such transmission, provided that any such telegram, cablegram or
other means of electronic transmission must either set forth or be submitted
with information from which it can be determined that the telegram, cablegram or
other electronic transmission was authorized by the stockholder.
The date and time of the opening and closing of the polls for each matter
upon which the stockholders will vote at a meeting shall be announced at the
meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls. All
elections and questions shall be decided by plurality vote, except as otherwise
required by the laws of Delaware or the Certificate of Incorporation.
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13. INSPECTORS OF ELECTION
The Chief Executive Officer shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. He may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability.
The inspectors shall (i) ascertain the number of shares outstanding and the
voting power of each, (ii) determine the number of shares represented at a
meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors. The inspectors shall determine the validity of and
count the proxies and ballots in accordance with applicable law.
14. LIST OF STOCKHOLDERS
A complete list of the stockholders entitled to vote at stockholders'
meetings (arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder)
shall be prepared by the Secretary and filed at least ten days prior to each
meeting, either at a place specified in the notice of such meeting within the
city or town where such meeting is to be held, or if no such place is specified,
at the place where such meeting is to be held. Such list shall be open to the
examination of any stockholder for any purpose germane to the meeting, and shall
be produced and kept at the time and place of such meeting during the whole time
thereof, and subject to the inspection of any stockholder who may be present.
The original or duplicate stock ledger shall be the only evidence as to who are
stockholders entitled to inspect such list.
BOARD OF DIRECTORS
15. RESIGNATION
A director may resign at any time by giving written notice to the
corporation, addressed to the Chief Executive Officer or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of a resignation shall not be necessary
to make it effective unless otherwise stated in the notice.
16. ANNUAL MEETING
A meeting of the Board, to be known as the annual Board meeting, shall be
held without call or notice immediately after and at the same general place as
the annual meeting of the stockholders. The annual Board meeting shall be held
for the purpose of organizing the Board, electing officers, and transacting any
other business that may properly come before the meeting.
17. REGULAR MEETINGS
Regular meetings of the Board may be held without call or notice at such
place and at such time as shall be fixed by the Board.
18. SPECIAL MEETINGS
Special meetings of the Board may be called by the Chief Executive Officer,
and shall be called by the Secretary upon the request in writing of not less
than two of the directors then in office. Special meetings of the Board may be
held at such place and at such time as shall be designated in
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the call thereof. Notice of special meetings of the Board shall either be mailed
by the Chief Executive Officer or the Secretary to each director at least three
days before the meeting, or served upon, or sent by electronic means by the
Chief Executive Officer or the Secretary to, each director at least one day
before the meeting, but during an emergency as defined in By-Law 20, notice may
be given only to such of the directors as it may be feasible to reach at the
time and by such means as may be feasible at the time, including publications or
private or public electronic means. Unless required by law, the notice need not
state the purposes of the meeting.
19. TELEPHONIC MEETINGS
Members of the Board or any committee designated by the Board may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
20. QUORUM
Except during the existence of an emergency and except as otherwise
provided in these By-Laws or in the Certificate of Incorporation, one-third of
the total number of directors, as fixed pursuant to Section (2) of Article VIII
of the Certificate of Incorporation, shall constitute a quorum for the
transaction of business. During the existence of an emergency, three directors
shall constitute a quorum for the transaction of business. To the extent
required to constitute a quorum at any meeting of the Board during an emergency,
the officers of the corporation who are present shall be deemed, in order of
rank and within the same rank in order of seniority, directors for such meeting.
Subject to the provisions of the Certificate of Incorporation, the action of the
majority of directors present at a meeting at which a quorum is present shall be
the act of the Board. In the event of lack of a quorum, a majority of the
directors present may adjourn the meeting from time to time without notice other
than announcement at the meeting until a quorum shall be obtained. At any such
adjourned meeting at which there is a quorum, any business may be transacted
which might have been transacted at the meeting originally called.
An "emergency" for the purpose of these By-Laws shall be any emergency
resulting from an attack on the United States or on a locality in which the
corporation conducts its business or customarily holds meetings of its Board or
its stockholders, or during any nuclear or atomic disaster, or during the
existence of any catastrophe, or other similar emergency condition, as a result
of which a quorum of the Board or a standing committee thereof cannot readily be
convened for action.
21. ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting of the Board
may be taken without a meeting if all members of the Board consent thereto in
writing and such written consent is filed with the minutes of the proceedings of
the Board.
22. ORGANIZATION
The Chairman of the Board, or in his absence the Chief Executive Officer,
or in his absence a director chosen by the directors present, shall act as
chairman at meetings of the Board. The Secretary of the corporation shall act as
secretary at meetings of the Board but in his absence the chairman of the
meeting may appoint a secretary for the meeting.
23. COMPENSATION
The compensation of directors for services as directors and as members of
committees of the Board shall be as fixed by the Board from time to time. The
compensation, if any, of the directors need not be uniform as between directors
and the compensation, if any, of the members of the committees of the Board need
not be uniform either as between members of a committee or as
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between committees. The Board shall provide for reimbursing the directors for
expenses incurred in attending meetings of the Board or committees thereof.
Any director may also serve the corporation in any other capacity and
receive compensation, including fees and expenses, for such service.
24. INDEPENDENT DIRECTORS
The nomination of an individual to serve as a member of the Board shall be
such that immediately after the election of such nominee to the Board a majority
of all directors holding office shall be independent directors.
For purposes of this By-Law, the term "independent director" shall mean a
director who: (i) is not employed by the corporation or its subsidiaries or
equity companies; and (ii) does not have, and is not affiliated with an entity
that has, business transactions or relationships with the corporation or its
subsidiaries that are required to be disclosed, under regulations promulgated
under the Securities Exchange Act of 1934, as amended, in the corporation's
proxy statement in connection with the annual meeting of stockholders at which
nominees for Board membership will be voted upon (other than disclosure required
solely as a result of the service by an executive officer of the corporation on
the board of a company affiliated with a member of the Board); provided,
however, that the Audit Committee of the Board may determine that a director or
nominee is an independent director notwithstanding item (ii) above if the Audit
Committee determines by written resolution that such person is independent of
management and free from any relationship that in the opinion of the Audit
Committee would interfere with such person's independent judgment as a member of
the Board.
COMMITTEES OF THE BOARD
25. STANDING AND OTHER COMMITTEES
The directors shall from time to time designate, by resolution passed by a
majority of the entire Board of Directors (as defined in Section (2) of Article
VIII of the Certificate of Incorporation), an Audit Committee, a Compensation
Committee, an Executive Committee and a Nominating Committee, each of which
shall have and may exercise the powers of the Board in the direction of the
business and affairs of the corporation in respect to the matters and to the
extent hereinafter set forth, subject to the power of the Board to assign from
time to time to any such committees or to any other committees such powers in
respect to specific matters as the Board may deem desirable. These four
committees shall be the standing committees of the corporation. The Board may,
by resolution passed by a majority of the entire Board of Directors, designate
such other committees as it from time to time may deem appropriate; no such
committee shall consist of fewer than two directors, and the powers of each such
committee shall be limited to those specified in the resolution designating the
committee.
26. PROCEDURE
Each committee shall fix its own rules of procedure and shall meet where
and as provided by such rules, but the presence of a majority shall be necessary
to constitute a quorum, unless otherwise provided by these By-Laws. Each
committee shall keep minutes of its meetings. Any action required or permitted
to be taken at any meeting of any committee may be taken without a meeting if
all the members consent thereto in writing and such written consent is filed
with the minutes of the proceedings of such committee. All action by each
committee shall be reported to the Board.
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27. AUDIT COMMITTEE
The Audit Committee shall consist of three or more members. The Board shall
select the members of the Audit Committee from among the directors who are not
officers or employees of the corporation and shall designate the Chairman of the
Committee. The Audit Committee shall, with respect to the corporation and the
other entities as to which the corporation has power to select and engage
auditors, select and engage independent public accountants to audit books,
records and accounts, determine the scope of audits to be made by the auditors
and establish policy in connection with internal audit programs and the scope
thereof, and shall perform such other duties as the Board may from time to time
prescribe.
28. COMPENSATION COMMITTEE
The Compensation Committee shall consist of three or more members. The
Board shall select the members of the Compensation Committee from among the
directors who are not, and have not been for at least one year prior to
selection, officers or employees of the corporation and shall designate the
Chairman of the Committee. The Compensation Committee shall constitute the Stock
Option Committee provided for under any stock option plan of the corporation. It
shall from time to time fix the compensation of employees who are directors of
the corporation and, in consultation with the Chief Executive Officer, the
compensation of officers of the corporation who are elected by the Board. It
shall review and make recommendations to the Board from time to time with
respect to the compensation of directors pursuant to By-Law 23.
29. EXECUTIVE COMMITTEE
The Executive Committee shall consist of three or more members including,
by virtue of his office, the Chief Executive Officer. The Board shall select the
other members of the Committee from among the directors and shall designate the
Chairman thereof.
The Executive Committee, when the Board is not in session, shall have and
may exercise all of the powers of the Board to direct the business and the
affairs of the corporation, including but not limited to the power to declare
dividends and to authorize the issuance of stock, except the powers hereinafter
in these By-Laws assigned to any other standing committee and except to the
extent, if any, that the authority of the Committee may be limited in any
respect by law, by the Certificate of Incorporation or by these By-Laws.
30. NOMINATING COMMITTEE
The Nominating Committee shall consist of three or more members. The Board
shall select the members of the Nominating Committee from among the directors
who (except in the case of the Chairman of the Board) are not officers or
employees of the corporation. The Nominating Committee shall have the power to:
propose and consider suggestions as to candidates for membership on the Board;
periodically recommend to the Board candidates for vacancies on the Board due to
resignations or retirements or due to such standards for composition of Board
membership as may from time to time legally prevail; review and recommend to the
Board such modifications to the prevailing Board of Directors retirement policy
as may be deemed appropriate in light of contemporary standards; and propose to
the Board on or before March 1 of each year a slate of directors for submission
to the stockholders at the annual meeting.
31. ALTERNATES; VACANCIES IN COMMITTEES
The Board may designate one or more directors as alternate members of any
committee. Alternate members shall serve, in the order in which the Board shall
determine, when one or more members of the committee shall be absent or
disqualified. Alternate members may attend committee meetings as observers,
without the right to vote when all members are present; when fewer than all are
present, only an alternate member serving in the place of an absent or
disqualified member shall
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have the right to vote. If no alternate is available, the committee member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in place of any absent or disqualified member.
All members of all committees (including Chairmen) shall serve at the pleasure
of the Board.
OFFICERS
32. DESIGNATION; ELECTION; QUALIFICATION; TERM
Each year at the annual Board meeting the directors shall elect a Chairman
of the Board, a Chief Executive Officer, a Secretary and a Treasurer. From time
to time the Board may also elect or appoint a Vice Chairman of the Board or Vice
Chairmen of the Board, a President, such Executive, Senior or other Vice
Presidents as it may deem appropriate, a Chief Financial Officer, and such other
officers, including a Controller, Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers and Assistant Controllers, as it may deem
appropriate. The Chief Executive Officer may appoint any officers of the
corporation not required to be elected by the Board, as he may deem appropriate.
The Chairman of the Board, the Chief Executive Officer, and any Vice Chairman of
the Board must be directors; no other officer need be a director. Any number of
offices may be held by the same person. The term of each officer, whenever
elected or appointed, shall be until the election or appointment (as the case
may be) and qualification of his successor or until his earlier resignation or
removal.
33. DUTIES
The officers shall have such powers and perform such duties as are
prescribed in these By-Laws, or, in the case of an officer whose powers and
duties are not so prescribed, as may be assigned by the Board or delegated by or
through the Chief Executive Officer.
34. RESIGNATION; REMOVAL; VACANCIES
Any officer may resign at any time by giving notice to the corporation
addressed to the Chief Executive Officer or the Secretary. Such resignation
shall take effect at the date of the receipt of such notice or at any later time
specified therein. Acceptance of a resignation shall not be necessary to make it
effective unless otherwise stated in the notice. Any officer may be removed by
the Board at any time with or without cause. Any appointed officer may be
removed by the Chief Executive Officer at any time with or without cause. A
vacancy in any office may be filled by the Board, and a vacancy in any appointed
office may be filled by the Chief Executive Officer, for the unexpired portion
of the term.
35. CHIEF EXECUTIVE OFFICER
The Chief Executive Officer of the corporation shall be elected by the
Board. Subject to the Board, he shall be in general and active charge, control
and supervision over the management and direction of the business, property and
affairs of the corporation. He shall keep the Board fully informed, and shall
freely consult it, concerning the business of the corporation in his charge.
He shall, subject to these By-Laws, have authority to:
(i) appoint or approve the appointment of employees to various posts
and positions in the corporation bearing titles designated or approved by
him and to prescribe their authority and duties, which may include the
authority to appoint subordinates to various other posts and positions; and
(ii) remove or approve the removal of employees so appointed; and
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(iii) sign, execute and acknowledge, on behalf of the corporation, all
deeds, mortgages, bonds, notes, debentures, stock certificates, contracts,
including contracts of guaranty and suretyship, leases, reports and other
documents and instruments, except where the signing or execution thereof by
some other officer or employee of the corporation shall be expressly
authorized and directed by law, or by the Board, or by these By-Laws.
Unless otherwise provided by law, or by these By-Laws, or by the Board, he
may authorize in a writing filed with the Secretary, any officer, employee,
or agent of the corporation to sign, execute and acknowledge, on behalf of
the corporation and in his place and stead, any or all such documents and
instruments.
He shall have such other authority and perform such other duties as are
incident to the office of Chief Executive Officer and as may be prescribed from
time to time by the Board and these By-Laws.
In the absence or disability of the Chief Executive Officer, or in case of
an unfilled vacancy in that office, until such time as the Board shall elect his
successor, his duties shall be performed and his powers shall be exercised by
other elected officers of the corporation who are also directors (unless none
are directors) in the order in which such officers were listed in their
respective elections.
36. CHAIRMAN OF THE BOARD, VICE CHAIRMAN OF THE BOARD AND PRESIDENT
The Chairman of the Board, any Vice Chairman of the Board and the
President, each acting alone, shall have authority to sign, execute and
acknowledge on behalf of the corporation, all deeds, mortgages, bonds, notes,
debentures, stock certificates, contracts, including contracts of guaranty and
suretyship, leases, reports and other documents and instruments, except where
the signing or execution thereof by some other officer or employee shall be
expressly authorized and directed by law, or by the Board, or by the Chief
Executive Officer or by these By-Laws. Each shall have such additional powers
and perform such additional duties as may be assigned to him by the Board or as
may be delegated to him by the Chief Executive Officer.
37. VICE PRESIDENTS
Each Vice President shall have such powers and perform such duties as may
be assigned to him by the Board or as may be delegated to him by the Chief
Executive Officer.
Each Executive Vice President shall have authority to sign, execute and
acknowledge on behalf of the corporation, all deeds, mortgages, bonds, notes,
debentures, contracts, including contracts of guaranty and suretyship, leases,
reports and other documents and instruments, except where the signing or
execution thereof by some other officer or employee shall be expressly
authorized and directed by law, or by the Board, or by the Chief Executive
Officer, or by these By-Laws.
38. CHIEF FINANCIAL OFFICER
The Chief Financial Officer shall:
(i) be the principal financial officer of the corporation and have
responsibility for all financial affairs of the corporation; and
(ii) protect the cash, securities, receivables and other financial
resources of the corporation, have responsibility for investment, receipt,
custody and disbursement of such resources, and establish policies for
granting credit to customers; and
(iii) maintain the creditworthiness of the corporation; and
(iv) negotiate and procure capital required by the corporation,
including long-term debt and equity, maintain adequate sources for the
corporation's short-term financing requirements and maintain banking
relationships; and
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(v) administer the accounting policies of the corporation and the
internal controls with respect to its financial affairs; and
(vi) supervise the corporation's books of account, and have access to
all records, including the Secretary's records; and
(vii) in general, have such other powers and perform such other duties
as may be assigned from time to time by the Board or by or through the
Chief Executive Officer.
39. CONTROLLER
The Controller shall:
(i) be the principal accounting officer of the corporation; and
(ii) have custody and charge of the corporation's books of account,
and have access to all records, including the Secretary's and the
Treasurer's records, for purpose of obtaining information necessary to
verify or complete the records of the Controller's office; and
(iii) implement the policies for granting credit to customers; and
(iv) implement the internal controls with respect to the financial
affairs of the corporation; and
(v) have the responsibility for processing vouchers for payment by the
Treasurer; and
(vi) in general, have such other powers and perform such other duties
as may be assigned from time to time by the Board or by or through the
Chief Executive Officer.
40. SECRETARY
The Secretary shall:
(i) attend and keep the minutes of all meetings of the stockholders,
the Board, and of such committees as the Board may direct; and
(ii) have custody of the corporate seal and all corporate records
(including transfer books and stock ledgers), contracts, papers,
instruments, documents and books of the corporation except those required
to be kept by other officers under these By-Laws; and
(iii) sign on behalf of the corporation such documents and instruments
as require his signature when approved in accordance with these By-Laws,
and to such documents he shall affix the corporate seal when necessary and
may do so when he deems it desirable; and
(iv) see that notices are given and records and reports are properly
kept and filed by the corporation as required by these By-Laws or as
required by law; and
(v) in general, have such other powers and perform such other duties
as are incident to the office of Secretary and as may be assigned to him
from time to time by the Board or by or through the Chief Executive
Officer.
41. TREASURER
The Treasurer shall:
(i) receive and sign receipts for all moneys paid to the corporation
and shall deposit the same in the name and to the credit of the corporation
in authorized banks or depositories; and
(ii) when necessary or desirable, endorse for collection on behalf of
the corporation all checks, drafts, notes and other obligations payable to
it; and
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(iii) disburse the funds of the corporation only upon vouchers duly
processed and under such rules and regulations as the Board may from time
to time adopt; and
(iv) keep full and accurate accounts of the transactions of his office
in books belonging to the corporation; and
(v) render as the Board may direct an account of the transactions of
his office; and
(vi) in general, have such other powers and perform such other duties
as are incident to the office of Treasurer and as may be assigned to him
from time to time by the Board or by or through the Chief Executive
Officer.
MISCELLANEOUS
42. OFFICES
The registered office of the corporation in the State of Delaware shall be
located at 1209 Orange Street, Wilmington, Delaware 19801 and the name of the
registered agent in charge thereof shall be The Corporation Trust Company. The
corporation may have such other offices as the Board may from time to time
determine. The books of the corporation may be kept outside the State of
Delaware.
43. SEAL
The corporation's seal shall be circular in form with "KIMBERLY-CLARK
CORPORATION -- DELAWARE" around the periphery and "1928 -- CORPORATE SEAL"
within.
44. FISCAL YEAR
The fiscal year of the corporation shall begin on January 1 of each year.
45. ANNUAL REPORT
At least fifteen days in advance of the annual meeting of stockholders, but
not later than three months after the close of the fiscal year, the Board shall
publish and submit to the stockholders a consolidated balance sheet of the
corporation and its consolidated subsidiaries as of the end of the previous
fiscal year and the related consolidated income and cash flow statements of the
corporation and its consolidated subsidiaries for the previous fiscal year.
46. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall:
(i) indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of the fact
that he is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or officer of
another corporation, or in the case of an officer or director of the
corporation is or was serving as an employee or agent of a partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not
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opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful; and
(ii) indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, or in the case of an officer or
director of the corporation is or was serving as an employee or agent of a
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
The corporation shall be required to indemnify an indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee against the
corporation or any of its directors, officers or employees only if the
initiation of such proceeding (or part thereof) by the indemnitee was authorized
by the Board. Notwithstanding the foregoing, the corporation shall be required
to indemnify an indemnitee in connection with a proceeding seeking to enforce
rights to indemnification without the authorization of the Board to the extent
that such proceeding is successful on the merits. To the extent that a director
or officer of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (i) and
(ii), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Any indemnification under subsections (i) and (ii) (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set
forth in subsections (i) and (ii). Such determination shall be made (1) by a
majority vote of the directors who were not parties to such action, suit or
proceedings, even though less than a quorum; or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion; or (3) by the stockholders.
Expenses (including attorneys' fees) incurred in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in this By-Law.
The indemnification and advancement of expenses provided by, or granted
pursuant to, the other paragraphs of this By-Law shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
The corporation's obligation, if any, to indemnify any person who was or is
serving at its request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, enterprise or nonprofit entity
shall be reduced by any amount such person may collect as
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<PAGE> 17
indemnification from such other corporation, partnership, joint venture, trust,
enterprise or nonprofit entity.
The Board may authorize and direct that insurance be purchased and
maintained on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, or in the case of an officer or
director of the corporation is or was serving as an employee or agent of a
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this By-Law.
47. RELIANCE ON RECORDS
Each director, each member of any committee designated by the Board, and
each officer, shall, in the performance of his duties, be fully protected in
relying in good faith upon the records of the corporation and upon such
information, opinion, reports or statements presented to the corporation by any
of the corporation's officers or employees, or committees of the Board, or by
any other person as to matters the director, member or officer reasonably
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the corporation.
48. INSPECTION OF BOOKS
The directors shall determine from time to time whether, and, to what
extent and at what times and places and under what conditions and regulations
the accounts and other books and records of the corporation (except such as may
by statute be specifically open to inspection) or any of them, shall be open to
the inspection of the stockholders, and the stockholders' rights in this respect
are and shall be restricted and limited accordingly.
49. TRANSACTIONS WITH THE CORPORATION
No contract or transaction between the corporation and one or more of its
directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if:
(i) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
or
(ii) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board, a committee
thereof, or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board or of a committee which authorizes the
contract or transaction.
No other contract or transaction in which a director or officer has an
interest and which may, under law, be authorized, approved or ratified by the
Board, a committee thereof, or the stockholders shall be void or voidable if
authorized, approved or ratified by the body which under law may authorize,
approve or ratify such contract or transaction.
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<PAGE> 18
50. RATIFICATION
Any transaction questioned in any stockholders' derivative suit on the
ground of lack of authority, defective or irregular execution, adverse interest
of director, officer or stockholder, nondisclosure, miscomputation, or the
application of improper principles or practices of accounting may be ratified
before or after judgment, by the Board or by the stockholders in case less than
a quorum of directors is qualified; and, if so ratified, shall have the same
force and effect as if the questioned transaction had been originally duly
authorized, and said ratification shall be binding upon the corporation and its
stockholders and shall constitute a bar to any claim or execution of any
judgment in respect to such questioned transaction.
51. VOTING OF STOCKS
Unless otherwise ordered by the Board, any one of the Chief Executive
Officer, the Chairman of the Board, the President, any Vice Chairman of the
Board, any Executive Vice President or any Senior Vice President shall have full
power and authority, on behalf of the corporation, to consent to or approve of
any action by, and to attend, act and vote at any meeting of stockholders of,
any company in which the corporation may hold shares of stock, and in giving
such consent or approval or at any such meeting shall possess and may exercise
any and all rights and powers incident to the ownership of such shares and which
as the holder thereof, the corporation might possess and exercise if personally
present, and may exercise such power and authority through the execution of
proxies or may delegate such power and authority to any other officer, agent or
employee of the corporation.
52. NOTICE
Any notice which the corporation is required to give under these By-Laws
may be given personally or it may be given in writing by depositing the notice
in the post office or letter box in a postpaid envelope directed to such address
as appears on the books of the corporation. Such notice shall be deemed to be
given at the time of mailing.
53. WAIVER OF NOTICE
Whenever any notice is required to be given, a waiver thereof in writing
signed by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
54. DISPENSING WITH NOTICE
No notice need be given to any person with whom communication is made
unlawful by any law of the United States or any rule, regulation, proclamation
or executive order issued under any such law.
55. AMENDMENTS
Subject to the provisions of the Certificate of Incorporation, these
By-Laws may be altered, amended or repealed by the stockholders or by the Board.
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The following emergency provisions are excerpted
from para. 110 Delaware General Corporation Law
The board of directors, either before or during any such emergency, may provide,
and from time to time modify, lines of succession in the event that during such
emergency any or all officers or agents of the corporation shall for any reason
be rendered incapable of discharging their duties.
The board of directors, either before or during any such emergency, may,
effective in the emergency, change the head office or designate several
alternative head offices or regional offices, or authorize the officers so to
do.
No officer, director or employee acting in accordance with any emergency by-laws
shall be liable except for willful misconduct.
To the extent not inconsistent with any emergency by-laws so adopted, the
by-laws of the corporation shall remain in effect during any emergency and upon
its termination the emergency by-laws shall cease to be operative.
Unless otherwise provided in emergency by-laws, notice of any meeting of the
board of directors during such an emergency may be given only to such of the
directors as it may be feasible to reach at the time and by such means as may be
feasible at the time, including publication or radio.
To the extent required to constitute a quorum at any meeting of the board of
directors during such an emergency, the officers of the corporation who are
present shall, unless otherwise provided in emergency by-laws, be deemed, in
order of rank and within the same rank in order of seniority, directors for such
meeting.
16
<PAGE> 1
EXHIBIT 4.4
KIMBERLY-CLARK CORPORATION
RETIREMENT CONTRIBUTION PLAN
(EFFECTIVE AS OF JANUARY 1, 1997)
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
Article I Name, Purpose and Effective Date of Plan..................................
Article II Definitions and Construction..............................................
2.1 Definitions.......................................................
2.2 Construction......................................................
Article III Participation.............................................................
3.1 Effective Date of Participation...................................
3.2 Transfer To and From Participating Units..........................
3.3 Nonduplication of Accruals for Participation in Other Plans.......
Article IV Retirement Contributions..................................................
4.1 Retirement Contributions..........................................
4.2 Limited Service and Leave of Absence..............................
4.3 Amount of Retirement Contribution.................................
4.4 Contributions by Participants.....................................
4.5 Temporary Suspension of Retirement Contributions..................
4.6 Allocations to Retirement Accounts................................
4.7 Valuation.........................................................
4.8 Payment of Contributions to Trustee...............................
4.9 Deductibility Requirement.........................................
4.10 Mistaken Contributions............................................
4.11 General Limitation................................................
Article V Limitations on Benefits...................................................
5.1 Limitations on Benefits...........................................
5.2 Aggregation of Plans..............................................
Article VI Trustee, Trust Agreement and Plan Expenses................................
6.1 Trust Agreement...................................................
6.2 Establishment of Investment Funds.................................
6.3 Fund Investments..................................................
6.4 Reinvestment of Income............................................
6.5 Plan Expenses.....................................................
Article VII Investment Directions.....................................................
7.1 Investment of Contributions.......................................
7.2 Investment Election...............................................
7.3 Reallocations.....................................................
7.4 Fund Transfers....................................................
7.5 Effective Date of Investment Changes..............................
7.7 Voting of Corporation Stock.......................................
7.8 Tender Offers.....................................................
7.9 Stock Rights, Stock Splits and Stock Dividends....................
Article Vesting...................................................................
VIII
8.1 Five Years of Service.............................................
8.2 Other Vesting Events..............................................
8.3 Forfeitures and Restorations......................................
</TABLE>
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<PAGE> 2
<TABLE>
<S> <C> <C>
Article IX Distributions and Withdrawals.............................................
9.1 Optional Forms of Distribution....................................
9.2 Lump Sum and Partial Distributions................................
9.3 Distribution by Reason of Death...................................
9.4 Distribution Upon Termination of Employment for Reasons other than
Death...........................................................
9.5 Small Distributions...............................................
9.6 Consent Required..................................................
9.7 Evidence of Right to Receive Benefit..............................
9.8 Required Distributions............................................
9.9 Direct Rollovers..................................................
9.10 Withdrawals.......................................................
9.11 Unclaimed Benefits................................................
Article X Incentive Investment Plan Committee.......................................
10.1 Membership........................................................
10.2 Powers............................................................
10.3 Procedures........................................................
10.4 Rules and Decisions...............................................
10.5 Authorization of Payments.........................................
10.6 Books and Records.................................................
10.7 Perpetuation of the Committee.....................................
10.8 Claims Procedure..................................................
10.9 Allocation or Reallocation of Fiduciary Responsibilities..........
10.10 Plan Administrator................................................
10.11 Service of Process................................................
Article XI Amendment and Termination.................................................
11.1 Amendment and Termination.........................................
Article XII Miscellaneous.............................................................
12.1 Non-Guarantee of Employment.......................................
12.2 Rights to Trust Assets............................................
12.3 Disclaimer of Liability...........................................
12.4 Non-Recommendation of Investment..................................
12.5 Indemnification of Committee......................................
12.6 Non-Alienation....................................................
12.7 Facility of Payment...............................................
12.8 Action by a Committee of the Board................................
12.9 Qualified Domestic Relations Orders...............................
12.10 Compensation Limit................................................
Article Merger....................................................................
XIII
Article XIV Top-Heavy Requirements....................................................
Appendix A List of Employers, Participating Units and Effective Dates of
Participation.............................................................
</TABLE>
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<PAGE> 3
ARTICLE I
NAME, PURPOSE AND EFFECTIVE DATE OF PLAN
This Kimberly-Clark Corporation Retirement Contribution Plan (the "Plan")
has been adopted effective January 1, 1997. Its purpose is to supplement in part
the retirement income which eligible Employees may be entitled to receive under
the Federal Social Security Act and to encourage Eligible Employees to arrange
for personal investment programs. The Plan is intended to meet the requirements
of Section 401(a) of the Internal Revenue Code of 1986, as amended, and the
Employee Retirement Income Security Act of 1974, as amended. The Plan is
intended to qualify as a profit-sharing plan.
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<PAGE> 4
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 Definitions. When the following words and phrases appear in this Plan, they
shall have the respective meanings set forth below unless the context
clearly indicates otherwise:
(a) Affiliated Employer: An Employer and any corporation which is a
member of a controlled group of corporations (as defined in Code
section 414(b)) which includes an Employer; any trade or business
(whether or not incorporated) which is under common control (as
defined in Code section 414(c)) with an Employer; any organization
(whether or not incorporated) which is a member of an affiliated
service group (as defined in Code section 414(m)) which includes an
Employer; and any other entity required to be aggregated with an
Employer pursuant to Code section 414(o).
(b) Base Earnings: A Participant's Earnings up to an amount which does
not exceed two-thirds ( 2/3) of the Taxable Wage Base for the Plan
Year.
(c) Beneficiary: The person or persons last designated on Timely Notice
by a Participant, provided the named person survives the
Participant. If no such person is validly designated or if the
designated person predeceases the Participant, the Beneficiary shall
be the Participant's spouse, if living, and if not, the
Participant's estate.
(d) Board: The Board of Directors of the Corporation.
(e) Business Day: Any day on which securities are traded on the New York
Stock Exchange.
(f) Code: The Internal Revenue Code of 1986, as amended from time to
time.
(g) Committee: The committee designated to administer and regulate the
Plan as provided in Article X.
(h) Corporation: Kimberly-Clark Corporation (a Delaware corporation).
(i) Corporation Stock: The common stock of the Corporation.
(j) Current Market Value: The fair market value on any day as
determined by the Trustee in accordance with generally accepted
valuation principles applied on a consistent basis.
(k) Day of Service: An Employee shall be credited with a Day of Service
for each calendar day commencing with the date on which the Employee
first performs an Hour of Service until the Employee's Severance
from Service Date. If an Employee quits, is discharged, retires, or
dies, and such Employee does not incur a One-Year Period of
Severance, the Employee shall be credited with a Day of Service for
each calendar day elapsed from the Employee's Severance from Service
Date to the date on which the Employee again completes an Hour of
Service.
(l) Earnings: Remuneration when paid, or would have been paid but for a
Participant's deferral election, to a Participant by an Employer
for personal services rendered to the Employer (before any
withholding required by law or authorized by the person to whom
such remuneration is payable), including overtime, bonuses,
incentive compensation, vacation pay, deducted military pay, state
disability payments received, workers compensation payments
received, and to the extent such deductions decrease the
individual's base pay, Before-Tax deferrals under the
Kimberly-Clark Corporation Salaried Employees Incentive Investment
Plan or Kimberly-Clark Corporation Hourly Employees Incentive
Investment Plan, or any other plan maintained by an Employer and
described under Section 401(k) of the Code, contributions under the
Kimberly-Clark Corporation Flexible Benefits Plan or any other plan
maintained by an Employer and described under Section 125 of the
Code, but excluding any severance payments (except as
II-1
<PAGE> 5
provided in Section 4.3), payments made under the Kimberly-Clark
Equity Participation Plans, pay in lieu of vacation, deferrals under
the Kimberly-Clark Corporation Deferred Compensation Plan,
compensation paid in a form other than cash (such as goods, services
and, except as otherwise provided herein, contributions to employee
benefit programs), service or suggestion awards, and all other special
or unusual compensation of any kind.
Earnings paid to an Employee for a Plan Year in excess of $150,000 (as
adjusted at the same time and in the same manner as under section
415(d) of the Code for that Plan Year) shall not be taken into
account.
Notwithstanding the above, in the case of an Employee on foreign
assignment, as determined by the Employer pursuant to Committee rule,
Earnings shall be base salary, as determined by the Employer pursuant
to Committee rule, which includes 401(k) deferrals under the
Kimberly-Clark Corporation Salaried Employees Incentive Investment
Plan or any other plan maintained by an Employer and described under
Section 401(k) of the Code, and contributions under the Kimberly-Clark
Corporation Flexible Benefits Plan or any other plan maintained by an
Employer and described under Section 125 of the Code, plus overtime,
bonuses, incentive compensation and vacation pay, but shall exclude
foreign service premiums, cost of living adjustments, housing
payments, tax equalization payments, severance payments (except as
provided in Section 4.3), compensation in a form other than cash (such
as goods, services and, except as otherwise provided herein,
contributions to employee benefit programs), service or suggestion
awards and all other special or unusual compensation of any kind.
(m) Eligible Employee: Any person who is in the employ of an Employer
during such periods as he meets all of the following conditions:
(i) he is an Employee on the regular payroll of an Employer,
(ii) he has (a) at least one calendar month of continuous Service or
(b) has completed during a computation period beginning on or
after April 1, 1993, 365 consecutive Days of Service, or has
completed during a computation period ending on or prior to March
31, 1993, at least 1,000 Hours of Service. A computation period
for purposes of this subsection 2.1(y)(ii) shall be a period of
12 consecutive months, beginning on the Employee's date of
employment by the Corporation, a Subsidiary or an Equity Company
or an anniversary thereof; and
(iii) he is in a Participating Unit.
For purposes of this subsection, "on the regular payroll of an
Employer" shall mean paid through the payroll department of such
Employer, and shall exclude employees classified by an Employer as
intermittent or temporary, and persons classified by an Employer as
independent contractors, regardless of how such Employees may be
classified by any federal, state, or local, domestic or foreign,
governmental agency or instrumentality thereof, or court.
Any leased employee (as defined in Code section 414(n)) shall not be
considered an Eligible Employee under the Plan. In addition, a person
who formerly was an Eligible Employee shall be treated as an Eligible
Employee for all purposes hereunder during such periods as he meets all
of the following conditions:
(i) he is an Employee on the regular payroll of an Employer, and
(ii) he is on temporary assignment to provide services for a
corporation, hereinafter referred to as the "Affiliate," which is
a member of a controlled group of corporations, within the
meaning of Code section 414(b) as modified by Code
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<PAGE> 6
section 415(h), of which the Corporation is a member, and which
is not an Employer hereunder.
For purposes of the preceding sentence, a person shall be
considered on temporary assignment only if his period of service
for an Affiliate is expected to be of brief duration not to exceed
5 years and if he is expected to resume services for an Employer
upon the expiration of the temporary assignment with the
Affiliate.
(n) Employee: A person employed by an Employer.
(o) Employer: The Corporation and each Subsidiary which the Committee
shall from time to time designate as an Employer for purposes of the
Plan and which shall adopt the Plan and the Trust. A list of
Employers is set forth in Appendix A.
(p) Equity Company: Any corporation, which is not the Corporation or a
Subsidiary, 33 1/3% or more of the voting shares of which are owned
directly or indirectly by the Corporation.
(q) ERISA: The Employee Retirement Income Security Act of 1974, as
amended from time to time.
(r) Excess Earnings: A Participant's Earnings in excess of the
Participant's Base Earnings.
(s) Highly Compensated Eligible Employee: An Eligible Employee who is
described in Code section 414(q) and applicable regulations
thereunder. An Employee who is described in Code section 414(q) and
applicable regulations thereunder generally means an Employee who
performed services for the Employer or an Affiliated Employer during
the "Determination Year" and is in one or more of the following
groups:
(i) Employees who at any time during the "Determination Year" or
"Look-Back Year" were "Five Percent Owners" of the Employer or an
Affiliated Employer. "Five Percent Owner" means any person who
owns (or is considered owning within the meaning of Code Section
318) more than five percent of the outstanding stock of the
Employer or stock possessing more than five percent of the total
combined voting power of all stock of the Employer or, in the
case of an unincorporated business, any person who owns more than
five percent of the capital or profits interest in the Employer.
In determining percentage ownership hereunder, employers that
would otherwise be aggregated under Code sections 414(b), (c),
(m) and (o) shall be treated as separate employers; or
(ii) Employees who received "Compensation" during the "Look-Back Year"
from the Employer or an Affiliated Employer in excess of $80,000,
adjusted for changes in the cost of living as provided in Code
section 415(d) and were in the "Top Paid Group" of Employees for
the Plan Year. "Top Paid Group" means the top 20 percent of
Employees, excluding those Employees described in Code section
414(q)(8) and applicable regulations, who performed services
during the applicable Year, ranked according to the amount of
"Compensation" received from the Employer during such Year.
The "Determination Year" shall be the Plan Year for which testing is
being performed, and the "Look-Back Year" shall be the immediately
preceding 12 month period.
An Employer may make a uniform election with respect to all plans of
the Employer to apply a calendar year calculation, as permitted by
regulations under Code section 414(q).
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For purposes of this subsection, "Compensation" shall mean
compensation as defined in subsection 5.1(d), including elective
salary reduction contributions made under this Plan or another
cash or deferred arrangement or pursuant to Code section 125.
(t) Hours of Service: Each hour for which an Employee is directly or
indirectly paid, or entitled to payment, by an Employer for the
performance of duties and for reasons other than the performance of
duties during the applicable computation period. An Hour of Service
shall also include each hour for which back pay, irrespective of
mitigation of damages, has been either awarded or agreed to by an
Employer. Hours of Service shall be credited to the Employee for
the computation period or periods in which the duties are performed
or for the period to which the award or agreement pertains,
whichever is applicable. Credit for Hours of Service shall be given
for periods of absence spent in military service to the extent
required by law. Credit for Hours of Service may also be given for
such other periods of absence of whatever kind or nature as shall
be determined under uniform rules of the Committee. Employment with
a company which was not, at the time of such employment, an
Employer shall be considered as the performance of duties for an
Employer if such employment was continuous until such company was
acquired by, merged with, or consolidated with an Employer and such
employment continued with an Employer following such acquisition,
merger or consolidation. Employment with a Subsidiary that is not
an Employer or with an Equity Company shall be considered as
performance of duties for an Employer.
Hours of Service shall be calculated and credited in a manner
consistent with U.S. Department of Labor regulation Section
2530.200b-2(b) and (c), and shall in no event exclude any hours
required to be credited under U.S. Department of Labor regulation
Section 2530.200b-2(a).
For any period or periods for which adequate records are not
available to accurately determine the Employee's Hours of Service,
the following equivalency shall be used:
190 Hours of Service for each month for which such Employee would
otherwise receive credit for at least one Hour of Service.
Solely for purposes of determining whether an Employee has incurred
a One-Year Period of Severance, an Employee who is absent from
work:
(i) by reason of the pregnancy of the Employee;
(ii) by reason of the birth of a child of the Employee;
(iii) by reason of a placement of a child with the Employee in
connection with the adoption of such child by the Employee; or
(iv) for purpose of caring for such child for a period beginning
immediately following such birth or placement,
shall be credited with certain Hours of Service which would
otherwise have been credited to the Employee if not for such
absence. The Hours of Service credited hereunder by reason of such
absence shall be credited with respect to the Plan Year in which
such absence begins, if such credit is necessary to prevent the
Employee from incurring a one-year break-in-service in such Plan
Year, and otherwise with respect to the Plan Year immediately
following the Plan Year in which such absence begins. In addition,
the Hours of Service credited with respect to such absence shall
not exceed 501, and shall be credited only to the extent that the
Employee substantiates to the satisfaction of the Committee that
the Employee's absence, and the length thereof, was for the
reasons described in paragraphs (i)-(iv) above. Notwithstanding
the foregoing,
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<PAGE> 8
no Hours of Service shall be credited pursuant to the three
immediately preceding sentences with respect to any absence which
commences before April 1, 1985.
(u) Investment Fund: An unsegregated fund of the Plan including the K-C
Stock Fund and such other funds as the Named Fiduciary may
establish. An Investment Fund, pending investment in accordance with
the Investment Fund purpose, may be invested in short-term
securities of the United States of America or in other investments
of a short-term nature.
(v) K-C Stock Fund: An unsegregated Investment Fund to be invested in
Corporation Stock, which, pending such investment, may be invested
in short-term securities issued or guaranteed by the United States
of America or in other investments of a short-term nature.
(w) KCTC: Kimberly-Clark Tissue Company, a wholly-owned subsidiary of
the Corporation.
(x) Lump Sum Distribution: A single distribution of the entire amount of
a Participant's Retirement Account.
(y) Named Fiduciary: The Retirement Trust Committee (the members of
which are designated by the Chief Executive Officer of the
Corporation) shall be the Named Fiduciary of the Plan as defined in
ERISA.
(z) Normal Retirement Age: The later of age 65 or the fifth anniversary
of the date the Employee commenced participation in the Plan.
(aa) One-Year Period of Severance: The applicable computation period of
12 consecutive months following an Employee's Severance from Service
Date during which an Employee fails to accrue a Day of Service.
Years of Service and One-Year Periods of Severance shall be measured
on the same computation period.
An Employee shall not be deemed to have incurred a One-Year Period
of Severance if he completes an Hour of Service within 12 months
following his Severance from Service Date.
(bb) Partial Distribution: A distribution of a portion of a Participant's
Retirement Account.
(cc) Participant: An Eligible Employee who is eligible to receive a
Retirement Contribution pursuant to Article IV. He remains a
Participant until his Retirement Account has been distributed
pursuant to the Plan.
(dd) Participating Unit: A specific classification of Employees of an
Employer designated from time to time by the Committee as
participating in this Plan. The classifications so designated and
effective dates of participation of are shown in Appendix A.
(ee) Plan Year: A twelve calendar month period beginning January 1 and
ending the following December 31.
(ff) Retirement Account: The account under the Plan to be maintained for
each Participant as provided in Section 4.7.
(gg) Service: Regular employment with the Corporation, a Subsidiary or an
Equity Company. For all purposes under the Plan, Service shall
include service with KCTC and Scott Paper Company prior to January
1, 1997.
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<PAGE> 9
(hh) Severance from Service Date: The earlier of:
(i) the date an Employee quits, is discharged, retires or dies, or
(ii) the first anniversary of the date an Employee is absent from
Service for any reason other than a quit, discharge,
retirement, or death (e.g., disability, leave of absence,
or layoff, etc.)
(ii) Subsidiary: Any corporation, 50% or more of the voting shares of
which are owned directly or indirectly by the Corporation, which is
incorporated under the laws of one of the States of the United
States.
(jj) Taxable Wage Base: With respect to any Plan Year, the maximum
amount of Compensation which may be considered wages for Social
Security purposes under Section 3121(a)(1) of the Code as in effect
on the first day of the Plan Year.
(kk) Terminated Participant: A Participant who has terminated his
employment with an Employer with the aggregate value of the
Participant's Retirement Account exceeding $3,500 and who has not
elected to receive a distribution under the Plan.
(ll) Timely Notice: A notice (i) in writing on forms, (ii) by electronic
medium, or (iii) by voice transmission, as prescribed by the
Committee and made at such places and at such times as shall be
established by Committee rules.
(mm) Trust: The Kimberly-Clark Corporation Defined Contribution Plans
Trust pursuant to the trust agreement provided for in Article VI.
(nn) Trustee: The trustee under the Trust.
(oo) Valuation Date: Each Business Day for which the Current Market Value
of a Participant's Retirement Account is determined for purposes of
this Plan.
(pp) Year of Service: An Employee shall accrue a Year of Service for each
365 Days of Service. If the total of an Employee's Service exceeds
his whole Years of Service, then such Employee shall be credited
with an additional fraction of a Year of Service, the numerator of
which shall be the total number of his Days of Service represented
by such excess and the denominator of which shall be 365. If the
total of an Employee's Service is less than one Year of Service,
then such Employee shall be credited with a fraction of a Year of
Service, the numerator of which shall be the total number of his
Days of Service and the denominator of which shall be 365.
2.2 Construction. Where appearing in the Plan, the masculine shall include the
feminine and the plural shall include the singular, unless the context
clearly indicates otherwise. The words "hereof," "herein," "hereunder" and
other similar compounds of the word "here" shall mean and refer to the
entire Plan and not to any particular Section or subsection.
II-6
<PAGE> 10
ARTICLE III
PARTICIPATION
3.1 Effective Dates of Participation.
(a) Each Eligible Employee who (i) has at least one Hour of Service on
December 31, 1996 and is an active Eligible Employee on January 1,
1997; and (ii) is a participant who is eligible to be credited with
additional Years of Benefit Service as defined in the Kimberly-Clark
Corporation Salaried Employees' Retirement Plan or Kimberly-Clark
Corporation Hourly Employees' Standard Retirement Plan as of January 1,
1997, shall have the opportunity to make a one-time election on or
before June 30, 1997 to become a Participant in the Plan, and such
Eligible Employee who affirmatively elects shall become a Participant
in the Plan effective as of July 1, 1997.
Notwithstanding the foregoing, an Eligible Employee who is eligible to
elect, and who does not affirmatively elect to become a Participant in
the Plan, or who affirmatively elects not to become a Participant in
the Plan, shall remain a participant in the Kimberly-Clark Corporation
Salaried Employees' Retirement Plan or Kimberly-Clark Corporation
Hourly Employees' Standard Retirement Plan, as applicable, in
accordance with the terms thereof, and no Retirement Contributions
shall be made for such Employee.
(b) An Eligible Employee who is an Employee of KCTC as of December 31, 1996
and who has an Hour of Service hereunder on January 1, 1997 and, as of
January 1, 1997, is not receiving termination payments under the Scott
Paper Company Termination Pay Plan for Salaried Employees nor on a
transition assignment and expected to receive termination payments
under the Scott Paper Company Termination Pay Plan for Salaried
Employees, shall become a Participant in the Plan as of January 1,
1997.
(c) Each Eligible Employee who commences employment with a Participating
Unit on or after January 1, 1997, or returns to work with a
Participating Unit on or after January 1, 1997, shall become a
Participant in the Plan on his employment or reemployment date, as
applicable.
3.2 Transfer To and From Participating Units
(a) An Eligible Employee who transfers out of a Participating Unit shall
cease to be a Participant in the Plan as of the date on which he
transfers out of such Participating Unit.
(b) An Eligible Employee who transfers into a Participating Unit shall
become a Participant in the Plan as of the date on which he transfers
into such Participating Unit.
3.3 Nonduplication of Accruals for Participation in Other Plans
Notwithstanding any other provision of the Plan, no Retirement
Contributions shall be made for an Employee during any period in which such
Employee is eligible to receive years of Benefit Service under the
Kimberly-Clark Corporation Salaried Employees' Retirement Plan or the
Kimberly-Clark Corporation Hourly Employees' Standard Retirement Plan, or
Credited Employment under the Kimberly-Clark Tissue Company Pension Plan
for Salaried Employees or the Kimberly-Clark Tissue Company Pension Plan
for Hourly Employees.
III-1
<PAGE> 11
ARTICLE IV
RETIREMENT CONTRIBUTIONS
4.1 Retirement Contributions. Each Eligible Employee who is a Participant
under Article III of the Plan shall be allocated Retirement Contributions
as provided in Section 4.3.
Notwithstanding any provision of the Plan to the contrary, Retirement
Contributions and Service credit with respect to qualified military
service will be provided in accordance with Section 414(u) of the Code.
4.2 Limited Service and Leave of Absence. All Participants who are actively
employed and receiving Earnings, or who are entitled to receive benefits
under the Scott Paper Company Termination Pay Plan for Salaried Employees
commencing after January 1, 1997, are entitled to be allocated Retirement
Contributions. Participants who are not actively employed due to a paid
leave of absence shall be allocated Retirement Contributions made during
such period of absence. Retirement Contributions on behalf of a
Participant shall cease upon commencement of his unpaid leave of absence,
and such Retirement Contributions shall resume upon the termination of
such leave.
4.3 Amount of Retirement Contribution. Subject to the limitations set forth in
Article V, for each Plan Year, the Employer shall pay or cause to be paid
to the Trustee, contributions to the Plan that shall be allocated to the
Retirement Account of each Participant eligible for an allocation as
determined below. The Retirement Contribution for any Plan Year shall be
sufficient to credit each such Participant's Retirement Account with an
amount equal to the percentage in Column A of Base Earnings plus the
percentage in Column B of Excess Earnings, based on the Participant's age
as of the last day of the Plan Year:
<TABLE>
<CAPTION>
COLUMN A COLUMN B
CONTRIBUTION PERCENTAGE CONTRIBUTION PERCENTAGE
AGE RANGE OF BASE EARNINGS OF EXCESS EARNINGS
-------------------------------------------- ----------------------- -----------------------
<S> <C> <C>
Under 25.................................... 3.50% 5.75%
25-29....................................... 3.75% 6.00%
30-34....................................... 4.00% 6.25%
35-39....................................... 4.25% 6.50%
40-44....................................... 4.50% 6.75%
45-49....................................... 5.25% 7.50%
50-54....................................... 6.00% 8.25%
55 and over................................. 6.50% 8.75%
</TABLE>
4.4 Contributions by Participants. Participants shall not make contributions
under this Plan. The amount of any Participant contribution under this
Plan which is determined to have been erroneously made, as adjusted for
income, gain and loss of the Trust for the time such contribution was
retained under the Plan, shall be repaid as soon as practicable after such
determination to such Participant if living; otherwise, as may be required
by law.
4.5 Temporary Suspension of Retirement Contributions. The Board may order the
suspension of all Retirement Contributions if, in its opinion, the
Corporation's consolidated net income after taxes for the last fiscal year
is substantially below the Corporation's consolidated net income after
taxes for the immediately preceding fiscal year. Any such determination by
the Board shall be communicated to all Eligible Employees and to all
Participants reasonably in advance of the first date for which such
temporary suspension is ordered.
4.6 Allocations to Retirement Accounts. Retirement Contributions made pursuant
to Section 4.3 shall be allocated to the Retirement Account of each
Participant as soon as administratively possible following payment to the
Trust.
IV-1
<PAGE> 12
4.7 Valuation. Each Investment Fund and each Retirement Account shall be
valued by the Trustee on each Valuation Date:
(a) by determining the Current Market Value, as of the Valuation Date, of
all securities and property which are then held in the Trust,
(b) by adding thereto the amount of any uninvested cash and accrued
income, or subtracting any losses incurred as of the Valuation Date,
and
(c) by subtracting any fees and expenses described in Article VI.
All amounts to be distributed pursuant to the provisions of Article IX
hereof as of the relevant Valuation Date shall be taken into account in
valuing the Investment Funds and each Retirement Account pursuant to the
provisions of this Section 4.7.
4.8 Payment of Contributions to Trustee. Amounts representing Retirement
Contributions shall, not less frequently than monthly, be paid into the
Trust.
4.9 Deductibility Requirement. All Retirement Contributions under the Plan are
conditioned upon the deductibility of such Retirement Contributions under
Section 404 of the Code and to the extent the deduction is disallowed,
shall be returned to the Employer within one year after the disallowance
of the deduction. Earnings attributable to such Retirement Contributions
shall not be returned to the Employer but losses attributable thereto
shall reduce the amount to be so returned. For purposes of this Section
4.10, Retirement Contributions which are not deductible in the current
taxable year of the Employer but which may be deducted in taxable years
subsequent to the year in respect of which it is made, shall not be
considered to be disallowed.
4.10 Mistaken Contributions. If Retirement Contributions are made by reason of
a mistake of fact, such Retirement Contributions shall be returned to the
Employer within one year after such Retirement Contributions are made. The
amount which may be returned to the Employer shall not exceed the excess
of (i) the amount contributed, over (ii) the amount that would have been
contributed had there not occurred a mistake of fact or a mistake in
determining the deduction. Earnings attributable to the excess Retirement
Contributions shall not be returned to the Employer but losses
attributable thereto shall reduce the amount to be so returned.
4.11 General Limitation. Notwithstanding any other provision of this Article
IV, no Retirement Contribution shall be made to the Plan which would cause
the Plan to fail to meet the requirements for exemption from tax or to
violate any provisions of the Code.
IV-2
<PAGE> 13
ARTICLE V
LIMITATIONS ON BENEFITS
5.1 Limitations on Benefits. Anything to the contrary herein notwithstanding,
no Retirement Contribution hereunder shall be made which will violate the
limitations set forth below:
(a) The Annual Addition to a Participant's Retirement Account (as such term
is defined below) in any Plan Year either solely under the Plan or
under an aggregation of the Plan with all other qualified defined
contribution plans of the Employer may not exceed the lesser of (i)
$30,000, (or such other amount as may be prescribed under regulations
issued by the Secretary of the Treasury under Section 415(d) of the
Code), or (ii) twenty-five percent (25%) of the Employee's total
Compensation for the Plan Year.
(b) If a Participant also participates under any other qualified defined
contribution plan or any qualified defined benefit plan maintained by
the Employer or an Affiliated Employer, all such defined contribution
plans shall be considered as one defined contribution plan, and all
such defined benefit plans shall be considered as one defined benefit
plan. In such event, the sum of the defined contribution plan fraction
and the defined benefit plan fraction for any Plan Year shall not
exceed 1.0. In determining the allowable limitation referred to in the
preceding sentence:
(i) The defined benefit plan fraction shall be determined by dividing
the projected annual benefit of the Participant under the defined
benefit plan by the lesser of:
(A) the product of 1.25 and $90,000 (subject to all adjustments as
are permitted by, or required under, Section 415 of the Code), or
(B) the product of 1.4 and 100% of the Participant's average annual
total Compensation for his highest three consecutive years; and
(ii) The defined contribution plan fraction shall be determined by
dividing the sum of all Annual Additions (as such term is defined
below) for all years in which he or she was a participant in any
such defined contribution plans by the sum of the lesser of (i) or
(ii) below for each year during which the Participant was an
employee of the Employer:
(A) the product of 1.25 and the dollar limitation in effect under
Section 415(c)(1)(A) of the Code for such year, or
(B) the product of 1.4 and 25% of the Participant's total
Compensation for such year.
In the event that the sum of the defined contribution plan fraction
and the defined benefit plan fraction would exceed the allowable
limitation for any Plan Year, the Participant's anticipated benefit
under the defined benefit plan shall be reduced accordingly.
Effective January 1, 2000, this Subsection 5.1(b) shall no longer apply
under the Plan.
(c) For purposes of this Section 5.1, the term "Annual Addition" as applied
to each Participant shall mean the sum of the following amounts
allocated to the Participant's Retirement Account under the Plan or any
other qualified defined contribution plan or qualified defined benefit
plan of the Employer or any Affiliated Employer: (1) matching employer
contributions, Retirement Contributions and pre-tax contributions
(excluding any previously distributed pre-tax contributions) and any
other employer contributions; (2) forfeitures; and (3) and any other
employee contributions. Amounts described in Section 415(l) and
419A(d)(2) of the Code contributed for any Plan Year for the benefit of
the Participant shall be treated as an Annual Addition to the extent
provided in such Sections.
V-1
<PAGE> 14
(d) For purposes of this Section, "Compensation":
(i) includes amounts actually paid or made available to a Participant
(regardless of whether he was such during the entire Plan Year);
(A) as wages, salaries, fees for professional service, and other
amounts received for personal services actually rendered in the
course of employment with the Employer or Affiliated Employer
including but not limited to commissions, compensation for
services on the basis of a percentage of profits and bonuses;
(B) for purposes of (c) above, earned income from sources outside the
United States (as defined in Code section 911(b)); whether or not
excludable from gross income under Code section 911 or deductible
under Code section 913;
(C) amounts described in Code sections 104(a)(3), 105(a) and 105(h)
but only to the extent that these amounts are includable in the
gross income of the Participant;
(D) amounts paid or reimbursed by the Employer or Affiliated Employer
for moving expenses incurred by the Participant, but only to the
extent that these amounts are not deductible by the Participant
under Code section 217;
(E) value of a nonqualified stock option granted to the Participant,
but only to the extent that the value of the option is includable
in the gross income of the Participant in the taxable year in
which granted;
(F) the amount includable in the gross income of a Participant upon
making the election described in Code section 83(b).
(ii) excludes --
(A) amounts contributed by an Employer or Affiliated Employer on
behalf of Participants under a cash or deferred arrangement and
any amount which is contributed or deferred by the Employer or
Affiliated Employer at the election of the Employee under Section
125 of the Code; provided, however that for Plan Years beginning
after December 31, 1997, such amounts shall be included as
"Compensation" with respect to such Plan Year.
(B) contributions made by the Employer or Affiliated Employer to a
plan of deferred compensation to the extent that, before the
application of the Code section 415 limitations to that plan, the
contributions are not includable in the gross income of the
Participant for the taxable year in which contributed and any
distributions from a plan of deferred compensation, regardless of
whether such amounts are includable in the gross income of the
Participant when distributed; provided however, any amounts
received by a Participant pursuant to an unfunded nonqualified
plan shall be considered as Compensation in the year such amounts
are includable in the gross income of the Participant;
(C) amounts realized from the exercise of a nonqualified stock
option, or recognized when restricted stock (or property) held by
a Participant either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture pursuant to Code
section 83 and the regulations thereunder;
(D) amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option;
(E) other amounts which 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
Participant); and
V-2
<PAGE> 15
(F) Compensation in excess of the limit set forth in Section 12.10.
In lieu of the above definition of "Compensation," the following
alternative definitions of "Compensation" in (i) or (ii) below may be
applied with respect to a Plan Year as determined by the Committee in its
discretion:
(i) Wages within the meaning of Section 3401(a) of the Code and all
other payments of compensation to an Employee by his Employer (in
the course of the Employer's trade or business) for which the
Employer is required to furnish the Employee a written statement
under Section 6041(d), 6051(a)(3), and 6052 of the Code, but
excluding amounts paid or reimbursed by the Employer for moving
expenses incurred by an Employee, but only to the extent that at the
time of the payment it is reasonable to believe that these amounts
are deductible by the Employee under Section 217 of the Code, and
determined without regard to any rules under Section 3401(a) of the
Code that limit the remuneration included in wages based on the
nature or location of the employment or the services performed.
(ii) Wages within the meaning of Section 3401(a) of the Code (for
purposes of income tax withholding at the source) of the Participant
but determined without regard to any rules that limit the
remuneration included in wages based on the nature or location of
the employment or the services performed.
5.2 Aggregation of Plans. For purposes of Section 5.2, this Plan shall be
aggregated and treated as a single plan with other plans maintained by the
Employer or any Affiliated Employer to the extent that this Plan is
aggregated with any other plan for purposes of satisfying Section 410(b) of
the Code (other than Section 410(b)(2)(A)(ii) of the Code).
V-3
<PAGE> 16
ARTICLE VI
TRUSTEE, TRUST AGREEMENT AND PLAN EXPENSES
6.1 Trust Agreement.
(a) The Corporation shall enter into a trust agreement with a person or
corporation selected by the Chief Executive Officer of the Corporation
to act as Trustee of Retirement Contributions. The Trustee shall
receive all Retirement Contributions and shall hold, manage,
administer, and invest the same, reinvest any income, and, in
accordance with instructions and directions of the Committee subject to
the Plan, make distributions.
(b) The trust agreement shall be in such form and contain such provisions
as the Chief Executive Officer of the Corporation may deem necessary
and appropriate to effectuate the purposes of the Plan and to qualify
the Plan and the Trust under the Code. Upon the written request of an
Eligible Employee, a copy of the trust agreement shall be made
available for his inspection.
(c) The Chief Executive Officer of the Corporation may, from time to time,
remove the Trustee or any successor Trustee at any time and any such
Trustee or any successor Trustee may resign. The Chief Executive
Officer of the Corporation shall, upon removal or resignation of a
Trustee, appoint a successor Trustee.
(d) The Trustee's accounts, books, and records relating to the Trust may be
audited annually by auditors selected by the Chief Executive Officer of
the Corporation.
(e) Brokerage fees, asset management fees, investment management fees and
other direct costs of investment and taxes (including interest and
penalties) shall be paid by the Trustee out of the funds of the Trust
to which such costs are attributable, unless paid by the Corporation in
its discretion.
6.2 Establishment of Investment Funds. The Trust shall consist of the K-C Stock
Fund and such other Funds as have been established by the Named Fiduciary.
The Named Fiduciary may, from time to time, in its discretion, establish
additional funds or terminate any Fund. The Funds may include, but shall
not be limited to, funds managed by the Trustee, by an insurance company,
or by an investment company regulated under the Investment Company Act of
1940.
6.3 Fund Investments. Any of the Funds referred to in Section 6.2 above may, in
whole or in part, be invested in any common, collective, or commingled
trust fund maintained by the Trustee or another financial institution,
which is invested principally in property of the kind specified for that
particular investment Fund or for the temporary investment of assets, and
which is maintained for the investment of the assets of plans and trusts
which are qualified under the provisions of Section 401(a) of the Code and
exempt from Federal taxation under the provisions of Section 501(a) of the
Code, and during such period of time as an investment through any such
medium exists the declaration of trust of such trust shall constitute a
part of the applicable Trust Agreement.
6.4 Reinvestment of Income. All interest, dividends, and other income, as well
as cash received from the sale or exchange of securities or other property,
produced by each of the Funds or any losses incurred by each of the Funds,
shall be reinvested in or deducted from the same Fund which produced such
proceeds, interest, dividends other income or losses.
6.5 Plan Expenses. The expenses of administering the Plan, including Trustee's
fees, shall be paid from the Trust and allocated among the Retirement
Accounts of the Participants and Terminated Participants except to the
extent that the Corporation, in its sole discretion, has determined that
the Employer shall pay any such expenses. The transfer taxes, brokerage
fees and other expenses in connection with the purchase, sale or
distribution of Corporation Stock shall be paid by the Trust, and shall be
deemed part of the cost of such Corporation Stock, or deducted in computing
the sale proceeds therefrom, as the case may be except to the extent that
the Corporation, in its sole discretion, determines that such taxes, fees
or expenses (other than transfer taxes on distribution) shall be paid by
the Employer.
VI-1
<PAGE> 17
ARTICLE VII
INVESTMENT DIRECTIONS
7.1 Investment of Contributions. Each Eligible Employee upon becoming a
Participant shall, upon Timely Notice, direct that his Retirement
Contributions be paid into and invested in any one or more of the
Investment Funds in such percentages as the Participant may direct;
provided, however, that such percentage investment in any Investment Fund
shall be in multiples of one percent (1%) of his Retirement Contributions.
In the event the Participant does not elect the manner in which his
Retirement Contributions are to be invested, the Trustee shall invest such
contributions in the Stable Income Fund (as defined in the Kimberly-Clark
Corporation Salaried Employees Incentive Investment Plan) until such time
as the Participant elects the manner in which his Retirement Contributions
are to be invested.
7.2 Investment Election. The percentage investment of a Participant's future
Retirement Contributions to be paid into and invested in any one or more of
the Investment Funds may be changed upon Timely Notice; provided, however,
that such percentage investment in any Investment Fund shall be in
multiples of one percent (1%) of the Retirement Contributions.
7.3 Reallocations. A Participant may, by making a request in the manner, and
subject to any restrictions, prescribed by the Committee, direct that any
portion, in multiples of one percent (1%), of his interest in any one or
more of the Investment Funds be reallocated to any one or more of the other
Investment Funds.
7.4 Fund Transfers: A Participant may, by making a request in the manner, and
subject to any restrictions, prescribed by the Committee, direct that any
portion, either in multiples of one percent (1%) or in a dollar amount, of
his interest in any one or more of the Investment Funds be transferred to
any one or more of the other Investment Funds.
7.5 Effective Date of Investment Changes. Any request made pursuant to the
provisions of Sections 7.1 through 7.4 above may be made upon Timely Notice
and, subject to any restrictions prescribed by the Committee, shall take
effect as soon as practicable after such request is received.
7.6 Valuation. Any reallocation or transfer made pursuant to the provisions of
Section 7.3 or 7.4 shall be based upon the value of the Participant's
interest in any Investment Fund on the Valuation Date on which such
transaction takes effect, subject to any restrictions prescribed by the
Committee.
7.7 Voting of Corporation Stock. A Participant (or in the event of his death,
his Beneficiary) may direct the voting at each annual meeting and at each
special meeting of the stockholders of the Corporation of that number of
whole shares attributable to the balances in his K-C Stock Fund Account as
of the Valuation Date coincident with the record date for such meeting.
Each such Participant (or Beneficiary) will be provided with copies of
pertinent proxy solicitation material together with a request for his
confidential instructions as to how such shares are to be voted. The
Committee shall direct the Trustee to vote such shares in accordance with
such instructions and shall also direct the Trustee how to vote any shares
of Corporation Stock at any meeting for which it has not received, or is
not subject to receiving, such voting instructions.
7.8 Tender Offers. A Participant (or in the event of his death, his
Beneficiary) may direct the Trustee in writing how to respond to a tender
or exchange offer for any or all whole shares of Corporation Stock held by
the Trustee and attributable to the balances in the K-C Stock Fund Account
as of the Valuation Date coincident with such offer. The Committee shall
notify each Participant (or Beneficiary) and exert its best efforts to
timely distribute or cause to be distributed to him such information as
will be distributed to stockholders of the Corporation in connection with
any such tender or exchange offer. Upon receipt of such instructions, the
VII-1
<PAGE> 18
Trustee shall tender such shares of Corporation Stock as and to the extent
so instructed. If the Trustee shall not receive instructions from a
Participant (or Beneficiary) regarding any such tender or exchange offer
for such shares of Corporation Stock (or shall receive instructions not to
tender or exchange such shares), the Trustee shall have no discretion in
such matter and shall take no action with respect thereto. With respect to
shares of Corporation Stock in the K-C Stock Fund for which the Trustee is
not subject to receiving such instructions, however, the Trustee shall
tender such shares in the same ratio as the number of shares for which it
receives instructions to tender bears to the total number of shares for
which it is subject to receiving instructions, and shall have no discretion
in such matter and shall take no action with respect thereto other than as
specifically provided in this sentence.
7.9 Stock Rights, Stock Splits and Stock Dividends. A Participant shall have no
right of request, direction or demand upon the Committee or the Trustee to
exercise in his behalf rights to purchase shares of Corporation Stock or
other securities of the Corporation. The Trustee, at the direction of the
Committee, shall exercise or sell any rights to purchase shares of
Corporation Stock appertaining to shares of such stock held by the Trustee
and shall sell at the direction of the Committee any rights to purchase
other securities of the Corporation appertaining to shares of Corporation
Stock held by the Trustee. The Retirement Accounts of Participants shall be
appropriately credited. Shares of Corporation Stock received by the Trustee
by reason of a stock split or stock dividend shall be appropriately
allocated to the Retirement Accounts of Participants.
VII-2
<PAGE> 19
ARTICLE VIII
VESTING
8.1 Five Years of Service. A Participant's interest in his Retirement Account
shall be fully vested upon the Participant's completion of five Years of
Service; provided, however, that a Participant who was employed by Scott
Paper Company on December 12, 1995 shall be fully vested in his Retirement
Account.
8.2 Other Vesting Events. Notwithstanding the above, each Participant's
interest in his Retirement Contributions (and any earnings thereon) made on
his behalf shall be vested in such Participant in whole, upon
(a) his attainment of Normal Retirement Age or upon his death; or
(b) the termination or partial termination of the Plan, or the complete
discontinuance of all Retirement Contributions under the Plan
(provided, however, that such discontinuance or partial termination
relates to such Participant).
8.3 Forfeitures and Restorations. If a Participant incurs a Severance from
Service Date other than by reason of an event described in Section 8.2
above, his interest in unvested Retirement Contributions and any earnings
thereon shall be forfeited for the Plan Years in which (a) the Participant
incurs five consecutive One-Year Periods of Severance or (b) if earlier,
the Participant receives a distribution of his entire vested interest in
his Retirement Account. A Participant who is not vested on his Severance
from Service Date shall be deemed to receive a distribution of zero dollars
($0) on such date. If a Participant who has received a distribution, or is
deemed to have received a distribution, of all or a portion of his vested
interest in the Plan in accordance with the provisions of Article IX hereof
on account of his incurring a Severance from Service Date is reemployed by
the Employer, he or she shall have restored to his Retirement Account the
amount forfeited in accordance with the above; provided, however, that such
Participant repays the amount distributed. Such repayment must be made
before the earlier of (i) five years after the date on which the
Participant is subsequently re-employed by the Employer, or (ii) the end of
a period of five consecutive One-Year Periods of Severance. Such restored
amount and repayment shall be invested according to the Participant's
elections then in effect under Section 7.2. The Committee shall maintain,
or cause to be maintained, a record of the amounts required to be restored
hereunder, and the Employer shall pay such amounts within thirty (30) days
of such notice either from current forfeitures or from an additional
contribution by the Employer.
VIII-1
<PAGE> 20
ARTICLE IX
DISTRIBUTIONS AND WITHDRAWALS
9.1 Optional Forms of Distribution. A Terminated Participant may, upon Timely
Notice elect any one of the following optional forms of distribution:
(a) All Cash Distribution. An "All Cash Distribution" of a Participant's
Retirement Account means a single distribution consisting of the cash
equivalent of the Current Market Value on the Valuation Date of the
Participant's vested percentage of his Retirement Account.
(b) Stock and Cash Distribution. A "Stock and Cash Distribution" of a
Participant's Retirement Account means one distribution consisting of:
(i) the cash equivalent of the Current Market Value of the
Participant's vested percentage of his Retirement Account, except
his interest in the K-C Stock Fund, and
(ii) full shares of Corporation Stock attributable to the Participant's
vested percentage interest in the K-C Stock Fund, together with
the cash equivalent of the Current Market Value of fractional
shares of such Corporation Stock.
(c) Installment Distribution. An "Installment Distribution" shall mean the
cash equivalent of the Current Market Value of the Participant's vested
percentage of his Retirement Account paid monthly in cash for a
specified number of years elected by the Participant, not to exceed the
lesser of the Participant's life expectancy or 20; provided, however,
that an Installment Distribution is available only to Terminated
Participants upon attainment of age 55. The value of each payment shall
be determined on a declining balance method.
Prior to the distribution of the final payment of an Installment
Distribution, a Participant may elect:
(i) to receive the remaining balance in his Retirement Account as a
Lump Sum Distribution;
(ii) to change the elected period of the Installment Distribution; or
(iii) to receive a Partial Distribution from the remaining balance in
his Retirement Account.
9.2 Lump Sum and Partial Distributions. A Lump Sum Distribution or a Partial
Distribution may be elected by any Participant in the form of an All Cash
Distribution or a Stock and Cash Distribution.
9.3 Distribution by Reason of Death.
(a) A Participant may designate a Beneficiary or Beneficiaries to receive
the amount in the Participant's Retirement Account in case of his
death, or to receive any balance due to the Participant at the time of
his death under Section 9.1(c) above. If a Participant's participation
terminates by reason of his death, his Beneficiary shall be entitled to
receive distribution in full of the total amount in his Retirement
Account. Such distribution shall be in the form of a lump sum payment
in cash of the total amount in the Participant's Retirement Account, or
at the election of the Beneficiary and in the manner prescribed by the
Committee, such distribution may be made in one of the forms specified
in Section 9.1 above.
(b) In case of the Participant's death, the amount in the Participant's
Retirement Account shall be distributed in accordance with the Plan to
the designated Beneficiary or Beneficiaries. If a married Participant
designates a Beneficiary or Beneficiaries other than his surviving
IX-1
<PAGE> 21
spouse at the time of such designation, such designation shall not be
effective (and the Participant's spouse shall be the Beneficiary)
unless:
(i) the spouse consents in writing to such designation;
(ii) the spouse's consent acknowledges the effect of such designation,
which consent shall be irrevocable; and
(iii) the spouse executes the consent in the presence of either a Plan
representative designated by the Committee or a notary public.
(c) Notwithstanding the foregoing, such consent shall not be required if
the Participant establishes to the satisfaction of the Committee that
such consent cannot be obtained because (i) there is no spouse; (ii)
the spouse cannot be located after reasonable efforts have been made;
or (iii) other circumstances exist to excuse spousal consent under
applicable regulations. Each Beneficiary designation made by a
Participant shall at all times satisfy the requirements of this Section
9.2; if at any time such designation shall fail to satisfy the
requirements of this Section 9.2, such designation shall thereupon be
deemed null and void. A Participant may designate a different
Beneficiary provided he or she complies with the spousal consent
requirements described above. If the Participant fails to designate a
Beneficiary in accordance with the provisions of this Section 9.2, or
if the designated Beneficiary predeceases the Participant, the total
amount in his Retirement Account shall be distributed to the
Participant's estate in the form of an All Cash Distribution as soon as
practicable after the Participant's death.
9.4 Distribution Upon Termination of Employment for Reasons Other than Death. A
Participant who is entitled to receive a distribution of his Retirement
Account due to the termination of his employment for any reason except
death, may on Timely Notice elect to receive such distribution in the form
of an All Cash Distribution, a Stock and Cash Distribution or, if eligible
under Section 9.1(c), an Installment Distribution, at any time.
9.5 Small Distributions. Anything to the contrary herein notwithstanding, the
Committee shall make an All Cash Distribution to a Participant within three
months after the Participant's Severance from Service Date if the total
amount distributable from a Participant's Retirement Account does not
exceed three thousand five hundred dollars ($3,500) and has never exceeded
$3,500 at the time of any prior distribution (or such amount as the
Secretary of Treasury shall specify).
9.6 Consent Required. In the case of a Terminated Participant whose vested
Retirement Account balance exceeds three thousand five hundred dollars
($3,500), no distribution shall be made (or commence) without the consent
of the Terminated Participant. If the Terminated Participant does not so
consent, then distribution will be deferred until the earlier of when a
Terminated Participant consents to such distribution, or until the
Participant attains age 65.
9.7 Evidence of Right to Receive Benefit: The Plan Administrator may require
proper proof of death, paternity, maternity, and such evidence of the right
of any person to receive a distribution payable as a result of the death of
a Participant as the Plan Administrator may deem desirable. The Plan
Administrator's determination of death, paternity, maternity and the right
of any person to receive payment shall be conclusive.
9.8 Required Distributions. Notwithstanding any provision of the Plan to the
contrary, a Participant's or Terminated Participant's Accounts shall be
distributed commencing no later than the earlier of:
(a) April 1 of the calendar year following the later of
(i) the calendar year in which the Terminated Participant attains age
70 1/2, or
(ii) the calendar year in which the Participant retires, as defined
under Section 401(a)(9) of the Code, or terminates employment, or
IX-2
<PAGE> 22
with respect to a Participant or Terminated Participant who is a five
percent owner as defined in Code Section 401(a)(9), April 1 of the
calendar year following the calendar year in which the Participant or
Terminated Participant attains age 70 1/2.
(b) unless the Participant elects a later date (which can be no later than
the date specified in (i) above), the 60th day after the latest of:
(i) the close of the Plan Year in which the Participant attains age 65,
(ii) the close of the Plan Year which includes the date 10 years after
the date the Participant first commenced participating in the Plan,
or
(iii)the close of the Plan Year in which the Participant terminated
employment with his Employer.
(c) All distributions from the Plan shall be made in accordance with the
requirements of Code section 401(a)(9) and the regulations thereunder,
including the minimum distribution incidental benefit requirements.
9.9 Direct Rollovers. In the event any payment or payments to be made to a
Terminated Participant, a Beneficiary who is the surviving spouse of a
Participant or Terminated Participant, or an Alternate Payee who is the
former spouse of a Participant or Terminated Participant under the Plan
would constitute an "eligible rollover distribution," such distributee may
request that such payment or payments be transferred directly from the
Trust to the trustee of (a) an individual retirement account described in
Section 408(a) of the Code, (b) an individual retirement annuity described
in Section 408(b) of the Code (other than an endowment contract), (c) an
annuity plan described in Section 403(a) of the Code, or (d) a qualified
retirement plan the terms of which permit the acceptance of rollover
distributions; provided, however, that clause (c) and (d) shall not apply
to an eligible rollover distribution made to a Beneficiary who is not the
surviving spouse of a Participant or Terminated Participant. Any such
request shall be made in writing, on the form prescribed by the Committee
for such purpose, at such time in advance as the Committee may specify.
For purposes of this Section 9.7, an eligible rollover distribution shall
mean a distribution from the Plan, excluding (a) any distribution that is
one of a series of substantially equal periodic payments (not less
frequently than annually) over the life (or life expectancy) of the
individual, the lives (or life expectancies) of the individual and the
individual's designated Beneficiary, or a specified period of ten (10) or
more years, (b) any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code, and (c) any distribution to
the extent such distribution is not included in gross income (determined
without regard to the exclusion for net unrealized appreciation of
Corporation Stock).
9.10 Withdrawals. No withdrawals may be made from a Participant's Retirement
Account. Notwithstanding the foregoing, a Terminated Participant may, by
making a request in the manner prescribed by the Committee, withdraw all or
any portion of the total value of the vested portion of his Retirement
Account.
9.11 Unclaimed Benefits. During the time when a benefit hereunder is payable to
any Terminated Participant or, if deceased, his Beneficiary, the Committee
may mail by registered or certified mail to such Participant or
Beneficiary, at his last known address, a written demand for his then
address, or for satisfactory evidence of his continued life, or both. If
such information is not furnished to the Committee within 12 months from
the mailing of such demand, then the Committee may, under rules established
by the Committee, in its sole discretion, declare such benefit, or any
unpaid portion thereof, suspended, with the result that such unclaimed
benefit shall be treated as a forfeiture for the Plan Year within which
such 12-month period ends, but shall be subject to restoration through and
Employer contribution if the lost Participant or such Beneficiary later
files a claim for such benefits.
IX-3
<PAGE> 23
ARTICLE X
INCENTIVE INVESTMENT PLAN COMMITTEE
10.1 Membership. The Committee shall mean the Salaried Employees Incentive
Investment Plan Committee, the members of which shall serve at the
pleasure of the Chief Executive Officer of the Corporation. The Committee
shall not receive compensation for its services. Committee expenses shall
be paid by the Corporation.
10.2 Powers. The Committee shall have all such powers as may be necessary to
discharge its duties hereunder, including, but not by way of limitation,
the power to construe or interpret the Plan, to determine all questions
of eligibility hereunder, to determine the method of payment of any
Accounts hereunder, to adopt rules relating to the giving of Timely
Notice, and to perform such other duties as may from time to time be
delegated to it by the Chief Executive Officer of the Corporation. The
Committee may prescribe such forms and systems and adopt such rules and
actuarial methods and tables as it deems advisable. It may employ such
agents, attorneys, accountants, actuaries, medical advisors, or clerical
assistants (none of whom need be members of the Committee) as it deems
necessary for the effective exercise of its duties, and may delegate to
such agents any power and duties, as it may deem necessary and
appropriate.
10.3 Procedures. A majority of the Committee members shall constitute a
quorum. The Committee may take any action upon a majority vote at any
meeting at which a quorum is present, and may take any action without a
meeting upon the unanimous written consent of all members. All action by
the Committee shall be evidenced by a certificate signed by the chairman
or by the secretary to the Committee. The Committee shall appoint a
secretary to the Committee who need not be a member of the Committee, and
all acts and determinations of the Committee shall be recorded by the
secretary, or under his supervision. All such records, together with such
other documents as may be necessary for the administration of the Plan,
shall be preserved in the custody of the secretary.
10.4 Rules and Decisions. All rules and decisions of the Committee shall be
uniformly and consistently applied to all Eligible Employees and
Participants under this Plan in similar circumstances and shall be
conclusive and binding upon all persons affected by them. The Committee
shall have absolute discretion in carrying out its duties under the Plan.
10.5 Authorization of Payments. Subject to the provisions hereof, it shall be
the duty of the Committee to furnish the Trustee with all facts and
directions necessary or pertinent to the proper disbursement of the Trust
funds.
10.6 Books and Records. The records of the Employers shall be conclusive
evidence as to all information contained therein with respect to the
basis for participation in the Plan and for the calculation of Retirement
Contributions.
10.7 Perpetuation of the Committee. In the event that the Corporation shall
for any reason cease to exist, then, unless the Plan is adopted and
continued by a successor, the members of the Committee at that time shall
remain in office until the final termination of the Trust, and any
vacancies in the membership of the Committee caused by death,
resignation, disability or other cause, shall be filled by the remaining
member or members of the Committee.
10.8 Claim Procedure. The Committee shall establish a procedure for handling
all claims by all persons. In the event any claim is denied, the
Committee shall provide a written explanation to the person stating the
reasons for denial.
10.9 Allocation or Reallocation of Fiduciary Responsibilities. The Named
Fiduciary may allocate powers and responsibilities not specifically
allocated by the Plan, or reallocate powers and responsibilities
specifically allocated by the Plan, to designated persons, partnerships
or corporations other than the Committee, and the members of the
Committee may allocate
X-1
<PAGE> 24
their responsibilities under the Plan among themselves. Any such
allocation, reallocation, or designation shall be in writing and shall be
filed with and retained by the secretary of the Committee with the
records of the Committee. Notwithstanding the foregoing, no reallocation
of the responsibilities provided in the Trust to manage or control the
Trust assets shall be made other than by an amendment to the Trust.
10.10 Plan Administrator. The Corporation shall be the Plan Administrator as
described in ERISA.
10.11 Service of Process. The Corporation shall be the designated recipient of
service of process with respect to legal actions regarding the Plan.
X-2
<PAGE> 25
ARTICLE XI
AMENDMENT AND TERMINATION
11.1 Amendment and Termination. While it is intended that the Plan shall
continue in effect indefinitely, the Board may from time to time modify,
alter or amend the Plan or the Trust, and may at any time order the
temporary suspension or complete discontinuance of Retirement
Contributions or may terminate the Plan, provided, however, that
(a) no such action shall make it possible for any part of the Trust assets
(except such part as is used for the payment of expenses) to be used
for or diverted to any purpose other than for the exclusive benefit of
Participants or their Beneficiaries;
(b) no such action shall adversely affect the rights or interests of
Participants theretofore vested under the Plan; and
(c) in the event of termination of the Plan or complete discontinuance of
Retirement Contributions hereunder, all rights and interests of
Participants not theretofore vested shall become vested as of the date
of such termination or complete discontinuance.
Any action permitted to be taken by the Board under the foregoing
provision regarding the modification, alteration or amendment of the Plan
or the Trust may be taken by the Committee, using its prescribed
procedures, if such action
(a) is required by law,
(b) is estimated not to increase the annual cost of the Plan by more than
$1,000,000, or
(c) is estimated not to increase the annual cost of the Plan by more than
$10,000,000, provided such action is approved and duly executed by the
Chief Executive Officer of the Corporation.
Any action taken by the Board or Committee shall be made by or pursuant
to a resolution duly adopted by the Board or Committee and shall be
evidenced by such resolution or by a written instrument executed by such
persons as the Board or Committee shall authorize for such purpose.
The Committee shall report to the Chief Executive Officer of the
Corporation before January 31 of each year all action taken by it
hereunder during the preceding calendar year.
However, nothing herein shall be construed to prevent any modification,
alteration or amendment of the Plan or of the Trust which is required in
order to comply with any law relating to the establishment or maintenance
of the Plan and Trust, including but not limited to the establishment and
maintenance of the Plan or Trust as a qualified employee plan or trust
under the Code, even though such modification, alteration, or amendment
is made retroactively or adversely affects the rights or interests of a
Participant under the Plan.
XI-1
<PAGE> 26
ARTICLE XII
MISCELLANEOUS
12.1 Non-Guarantee of Employment. Nothing contained in this Plan shall be
construed as a contract of employment between an Employer and a
Participant, or as a right of any Participant to be continued in the
employment of his Employer, or as a limitation of the right of an
Employer to discharge any Participant with or without cause.
12.2 Rights to Trust Assets. No Participant or any other person shall have any
right to, or interest in, any part of the Trust assets upon termination
of his employment or otherwise, except as provided from time to time
under this Plan, and then only to the extent of the amounts due and
payable to such person out of the assets of the Trust. All payments as
provided for in this Plan shall be made solely out of the assets of the
Trust and neither the Employers, the Trustee, nor any member of the
Committee or the Named Fiduciary shall be liable therefor in any manner.
The Employers shall have no beneficial interest of any nature whatsoever
in any Employer Contributions after the same have been received by the
Trustee, or in the assets, income or profits of the Trust, or any part
thereof, except to the extent that forfeitures as provided in the Plan
shall be applied to reduce the Employer Contributions.
12.3 Disclaimer of Liability. Neither the Trustee, the Employers, nor any
member of the Committee or the Named Fiduciary shall be held or deemed in
any manner to guarantee the funds of the Trust against loss or
depreciation.
12.4 Non-Recommendation of Investment. The availability of any security
hereunder shall not be construed as a recommendation to invest in such
security. The decision as to the choice of investment of Retirement
Contributions must be made solely by each Participant, and no officer or
employee of the Corporation or the Trustee is authorized to make any
recommendation to any Participant concerning the allocation of Retirement
Contributions hereunder.
12.5 Indemnification of Committee. The Employers shall indemnify the Committee
and the Named Fiduciary and each member thereof and hold them harmless
from the consequences of their acts or conduct in their official
capacity, including payment for all reasonable legal expenses and court
costs, except to the extent that such consequences are the result of
their own willful misconduct or breach of good faith.
12.6 Non-Alienation. Except as otherwise provided herein, no right or interest
of any Participant or Beneficiary in the Plan and the Trust shall be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, attachment, garnishment,
execution, levy, bankruptcy, or any other disposition of any kind, either
voluntary or involuntary, prior to actual receipt of payment by the
person entitled to such right or interest under the provisions hereof,
and any such disposition or attempted disposition shall be void.
12.7 Facility of Payment. If the Committee has notice that a Participant
entitled to a distribution hereunder, or his Beneficiary, is incapable of
caring for his own affairs, because of illness or otherwise, the
Committee may direct that any distribution from such Participant's
Retirement Account may be made, in such shares as the Committee shall
determine, to the spouse, child, parent or other blood relative of such
Participant, or his Beneficiary, or any of them, or to such other person
or persons as the Committee may determine, until such date as the
Committee shall determine that such incapacity no longer exists. The
Committee shall be under no obligation to see to the proper application
of the distributions so made to such person or persons, and any such
distribution shall be a complete discharge of any liability under the
Plan to such Participant, or his Beneficiary, to the extent of such
distribution.
12.8 Action by a Committee of the Board. Any action which is required or
permitted to be taken by the Board under the Plan may be taken by the
Compensation Committee of the Board or any
XII-1
<PAGE> 27
other duly authorized committee of the Board designated under the By-Laws
of the Corporation.
12.9 Qualified Domestic Relations Orders. Anything in this Plan to the
contrary notwithstanding:
(a) Alternate Payee's Account. An alternate payee under a domestic
relations order determined by the Corporation to be a qualified
domestic relations order (as defined in Code section 414(p)) shall
have established and maintained for him a separate Retirement Account
similar to the Retirement Account of the Participant specified in the
qualified domestic relations order. The alternate payee's Retirement
Accounts shall be credited with his interest in such Participant's
Retirement Accounts, as determined under the qualified domestic
relations order.
(b) Investment of Alternate Payee's Account. Unless a Qualified Domestic
Relations Order provides to the contrary, an Alternate Payee shall
have the right to direct the investment of any portion of a
Participant's Retirement Account payable to the Alternate Payee under
such order in the same manner as provided in this Article VII with
respect to a Participant, which amounts shall be separately accounted
for by the Trustee in the Alternate Payee's name.
(c) Alternate Payee's Beneficiary. Except to the extent otherwise
provided by the Qualified Domestic Relations Order relating to an
Alternate Payee:
(i) the Alternate Payee may designate on Timely Notice a beneficiary,
and
(ii) the beneficiary of the Alternate Payee shall be accorded under
the Plan all the rights and privileges of the Beneficiary of a
Participant in the same manner as provided in Section 9.1 (except
that no spousal consent shall be required). If the Alternate
Payee does not designate a Beneficiary, or if the Beneficiary
predeceases the Alternate Payee, benefits payable to the
Alternate Payee which have not been distributed shall be paid to
the Alternate Payee's estate.
(d) Distribution to Alternate Payee. An alternate payee shall be entitled
to receive a distribution from the Plan in accordance with the
Qualified Domestic Relations Order relating to the Alternate Payee.
Such distribution may be made only in a method provided in Article IX
and shall include only such amounts as have become vested. An
Alternate Payee shall be eligible for an Installment Distribution
under Section 9.1(c) only if the Participant is eligible for such
distribution.
(e) Vesting of Alternate Payee's Account. In the event that the Qualified
Domestic Relations Order provides for all or part of the non-vested
portion of the Participant's Retirement Account to be credited to the
account of the Alternate Payee, such amounts shall vest and/or be
forfeited at the same time and in the same manner as the Retirement
Account of the Participant specified in the Qualified Domestic
Relations Order; provided, however, that no forfeiture shall result
to the account of the Alternate Payee due to any distribution to or
withdrawal by the Participant from his Retirement Account or any
distribution to or withdrawal by the Alternate Payee from the vested
portion of the account of the Alternate Payee.
12.10 Compensation Limit. In addition to other applicable limitations which may
be set forth in the Plan and notwithstanding any other contrary provision
of the Plan, compensation taken into account under the Plan shall not
exceed $150,000, adjusted for changes in the cost of living as provided
in Code sections 401(a)(17)(B) and 415(d).
XII-2
<PAGE> 28
ARTICLE XIII
MERGER
No merger or consolidation with or transfer of any assets or liabilities to
any other plan shall be made unless, upon completion thereof, the value of each
Participant's Retirement Account shall immediately after said merger,
consolidation, or transfer be equal to or greater than the value of the
Participant's Retirement Account immediately before the merger, consolidation,
or transfer (if the Plan had then terminated).
XIII-1
<PAGE> 29
ARTICLE XIV
TOP-HEAVY REQUIREMENTS
14.1 Top-Heavy Requirements. Notwithstanding any other provisions of this Plan,
the following rules shall apply for any Plan Year if as of the last day of
the preceding Plan Year or, in the case of the first Plan Year, the last
day of such Plan Year, based on valuations as of such date, the sum of the
present value of accrued benefits and Accounts of "key employees" (within
the meaning of Code section 416) exceeds 60% of a similar sum for all
employees under (i) each plan of the Employer or any Affiliated Employer
in which a "key employee" participates, (ii) each other plan of the
Employer or any Affiliated Employer which enables any such plan to meet
the requirements of Code section 401(a)(4) or 410 and (iii) each other
plan of the Employer or any Affiliated Employer which, if aggregated with
the plan described in (i) and (ii), would not cause any such plan
described in this clause (iii) to fail to satisfy the requirements of Code
Sections 401(a)(4) or 410. A Plan Year during which such rules apply shall
be known as a "Top-Heavy Plan Year."
(a) Vesting. A Participant who is credited with an Hour of Service during
the Top-Heavy Plan Year, or in any Plan Year after the Top-Heavy Plan
Year, and who has completed at least three years of Service shall have
a nonforfeitable right to 100% of his Retirement Account and no such
amount may become forfeitable if the Plan later ceases to be Top-Heavy
nor may such amount be forfeited under the provisions of Code sections
411(a)(3)(B) (relating to suspension of benefits upon reemployment) or
411(a)(3)(D) (relating to forfeitures upon withdrawal of mandatory
contributions). If the Plan become Top-Heavy and later ceases to be
Top-Heavy, this vesting schedule shall no longer apply and benefits
which have not at such time vested under this schedule shall vest only
in accordance with other provisions of this Plan, provided that any
Participant with at least 3 years of Service shall be entitled to
continue to utilize this schedule for vesting purposes by making an
election at the time and in the manner specified by the Committee.
(b) Required Contributions. Each Employer shall contribute on behalf of
each employee eligible to participate in the Plan, the lesser of:
(i) 3% of such employee's compensation (within the meaning of Code
section 415); or
(ii) the percentage of such employee's compensation (within the meaning
of Code section 415) which is equal to the percentage at which
contributions were made for that Plan Year on behalf of the "key
employee" for whom such percentage is the greatest for such Plan
Year, as prescribed by Code section 416(c)(2)(B) and regulations
thereunder.
Any contribution made pursuant to this subsection 14.1(b) shall be
allocated to the Retirement Account on behalf of the employee for whom
such contribution is made.
(c) Additional Limitations. No allocations may be made to the Account of
a Participant the sum of whose defined benefit plan fraction and
defined contribution plan fraction, as defined in Code section
415(e), exceeds 1.0 when the dollar amounts, as defined in Section
12.2(b) hereof, are multiplied by 1.0 rather than 1.25.
The provisions of this Section 14.1 shall be interpreted in
accordance with the provisions of Code section 416 and any
regulations thereunder, which are hereby expressly incorporated by
reference.
(d) Coordination. In the event a top heavy minimum contribution or
benefit is required under this Plan or another plan of an Employer
that covers a Participant, the top heavy minimum contribution or
benefit, as appropriate, shall be provided in this Plan.
XIV-1
<PAGE> 30
APPENDIX A
LIST OF EMPLOYERS, PARTICIPATING UNITS
AND EFFECTIVE DATES OF PARTICIPATION
<TABLE>
<CAPTION>
EMPLOYERS PARTICIPATING UNITS EFFECTIVE DATE
- ------------------------------------ --------------------------------------- ----------------
<S> <C> <C>
Avent, Inc. All salaried and hourly employees* January 1, 1997
Coosa Pines Golf Club, Incorporated All salaried and hourly employees* January 1, 1997
CPM, Inc. All salaried employees* January 1, 1997
K-C Aviation Inc. All salaried employees* January 1, 1997
Kimberly-Clark Corporation All salaried employees* January 1, 1997
All hourly employees* at the Beech
Island Mill, Berkeley Mill, Coosa
Goodwater and Roanoke Operations and
New Milford Mill.
Kimberly-Clark International All salaried employees* except those January 1, 1997
Services Corporation who transfer to a 50% or less owned
foreign subsidiary on a non-temporary
basis.
Kimberly-Clark Tissue Company All salaried employees* January 1, 1997
Scott Worldwide, Inc. All salaried employees* January 1, 1997
</TABLE>
- ---------------
* Including those on temporary assignment at other Employers or in other
classifications, but excluding employees on temporary assignment from another
Employer or classification.
A-1
<PAGE> 1
EXHIBIT 4.5
KIMBERLY-CLARK CORPORATION
RETIREMENT CONTRIBUTION EXCESS BENEFIT PROGRAM
In recognition of the valuable services provided to Kimberly-Clark
Corporation (the "Corporation"), and its subsidiaries, by its employees, the
Board of Directors of the Corporation (the "Board") wishes to provide additional
retirement benefits to those individuals whose benefits under the Kimberly-Clark
Corporation Retirement Contribution Plan (the "RCP") are restricted by the
operation of the provisions of the Internal Revenue Code of 1986, as amended. It
is the intent of the Corporation to provide these benefits under the terms and
conditions hereinafter set forth. This Program is intended to encompass two
plans, (i) an "excess benefit plan" within the meaning of Section 3(36) of
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and, as
such, to be exempt from all of the provisions of ERISA pursuant to Section
4(b)(5) thereof and (ii) a non-qualified supplemental retirement plan which is
unfunded and maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees of
the Corporation, pursuant to Sections 201, 301 and 401 of ERISA and, as such,
exempt from the provisions of Parts II, III and IV of Title I of ERISA.
ARTICLE 1
DEFINITIONS
Each term which is used in this Program and also used in the RCP shall have
the same meaning herein as the RCP.
Notwithstanding the above, for purposes of this Program, where the
following words and phrases appear in this Program they shall have the
respective meanings set forth below unless the context clearly indicates
otherwise:
1.1 "Beneficiary" means the person or persons who under this Program
becomes entitled to receive a Participant's interest in the event of the
Participant's death. The Beneficiary need not be the same as the
beneficiary under the RCP.
1.2 "Change of Control" of the Corporation shall be deemed to have
taken place if: (i) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
acquires shares of the Corporation having 20% or more of the total number
of votes that may be cast for the election of Directors of the Corporation;
or (ii) as the result of any cash tender or exchange offer, merger or other
business combination, sale of assets or contested election, or any
combination of the foregoing transactions (a "Transaction"), the persons
who were directors of the Corporation before the Transaction shall cease to
constitute a majority of the Board of Directors of the Corporation of any
successor to the Corporation.
1.3 "Code" means the Internal Revenue Code for 1986, as amended and
any lawful regulations or other pronouncements promulgated thereunder.
1.4 "Committee" means the Incentive Investment Plan Committee named
under the Kimberly-Clark Corporation Salaried Employees Incentive
Investment Plan.
1.5 "Earnings" means remuneration when paid, or would have been paid
but for an Employee's deferral election, to a Participant from a
Participating Unit for personal services rendered to such Participating
Unit (before any withholding required by law or authorized by the person to
whom such remuneration is payable), including overtime, bonuses, incentive
compensation, vacation pay, deducted military pay, state disability
payments received, workers compensation payments received and, to the
extent such deductions decrease the individual's
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base pay, Before-Tax deferrals under the Kimberly-Clark Corporation
Salaried Employee Incentive Investment Plan, contributions under the
Kimberly-Clark Corporation Flexible Benefits Plan or any other plan
described under Section 125 of the Code, and deferrals under the
Kimberly-Clark Corporation Deferred Compensation Plan. Earnings shall
exclude any severance payments (except as provided in Section 4.3 of the
RCP), payments made under the Kimberly-Clark Corporation Equity
Participation Plans, pay in lieu of vacation, compensation paid in a form
other than cash (such as goods, services and, except as otherwise provided
herein, contributions to employee benefit programs), service or suggestion
awards, and all other special or unusual compensation of any kind;
provided, however that the limitations on Earnings provided for pursuant to
Code Sections 401(a)(17) shall not apply under this Program.
Notwithstanding the foregoing, Earnings shall not include any remuneration
paid to a Participant after payment of such individual's Individual Account
commences in accordance with Section 4.9 following the Participant's
Termination of Service.
1.6 "Effective Date" means January 1, 1997.
1.7 "Excess Plan" means the plan established as part of the Program
for Participants whose Retirement Contributions to the RCP are limited
solely by Code Section 415.
1.8 "Individual Account" means the account established pursuant to
Section 3.
1.9 "Investment Funds" means the phantom investment funds established
under this Program which will accrue earnings as if the Participant's
Individual Account held actual assets which were invested in the
appropriate Investment Fund as defined under the RCP.
1.10 "Participant" means any Employee who satisfies the eligibility
requirements set forth in Section 2. In the event of the death or
incompetency of a Participant, the term shall mean the Participant's
personal representative or guardian.
1.11 "Program" means the Kimberly-Clark Corporation Retirement
Contribution Excess Benefit Program as set forth herein and as the same may
be amended from time to time; provided, however, that the term "Excess
Plan" or "SRP" may be used to refer to only one of the two plans
encompassed within the Program.
1.12 "Retirement Date" means the date of Termination of Service of
the Participant on or after he attains age 55 and has 5 Years of Service
with the Corporation.
1.13 "RCP" means the Kimberly-Clark Corporation Retirement
Contribution Plan, as in effect from time to time.
1.14 "SRP" means the plan established as part of the Program for
Participants whose Retirement Contributions to the RCP are limited by the
application of the rules, or regulations, of Code Section 401(a)(4) or the
limitations of Code Section 401(a)(17), in either case alone or in
conjunction with the limitations of Code Section 415 or whose Earnings are
not fully taken into account in determining the Employee's Retirement
Contributions to the RCP.
1.15 "Termination of Service" means the Participant's cessation of
his service with the Corporation for any reason whatsoever, whether
voluntarily or involuntarily, including by reasons of retirement or death.
ARTICLE 2
ELIGIBILITY
2.1 Any Employee who is a Participant in the RCP on or after the Effective
Date and whose Retirement Contributions to the RCP are limited solely by Code
Section 415 shall participate in the Excess Plan. Any other Employee who is a
Participant in the RCP on or after the Effective Date and whose Retirement
Contributions to the RCP are limited by the application of the rules, or
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<PAGE> 3
regulations, of Code Section 401(a)(4) or the limitations of Code Section
401(a)(17), in either case alone or in conjunction with the limitations of Code
Section 415 or whose Earnings are not fully taken into account in determining
the Employee's Retirement Contributions to the RCP shall participate in the SRP;
provided, however, that no Employee shall become a Participant in the SRP unless
such Employee is a member of a select group of management or highly compensated
Employees of the Corporation so that the SRP is maintained as a plan described
in Section 201(2) of ERISA.
2.2 Notwithstanding any of the foregoing provisions of Article 2 to the
contrary, any Employee who on the Effective Date is both an active employee of
the Corporation or its subsidiaries and is a Participant in the Kimberly-Clark
Tissue Company Defined Contribution Excess Benefit Program (the "KCTC Plan")
must elect to participate in this Program and shall, pursuant to this election,
as of the Effective Date, have the amount credited to the Participant's
Individual Account under the KCTC Plan transferred to this Program. "Active
employee" shall not include employees who are in transition assignments or who
are on Limited Service as defined under the Scott Paper Company Termination Pay
Plan for Salaried Employees.
2.3 Notwithstanding any provision of this Article 2 to the contrary, no
Employee shall become a Participant in this Program solely by reason of his
Retirement Contributions being limited by Section 415(c)(1)(B) of the Code.
ARTICLE 3
INDIVIDUAL ACCOUNT
3.1 The Corporation shall create and maintain an unfunded Individual
Account under the Excess Plan or the SRP, as applicable, for each Participant to
which it shall credit the amounts described in this Article 3. Participants
entitled to receive Retirement Contributions under the RCP shall receive
Retirement Contributions under the Excess Plan in an amount as would have been
contributed for such Participant under the RCP without regard to the limitation
on benefits imposed by Section 415 of the Code, and calculated using Earnings as
defined in this Program, but only to the extent that such amount exceeds such
limitations. In addition, each Participant shall receive Retirement
Contributions under the SRP as would have been contributed for such Participant
under the RCP without regard to the limitations on benefits imposed by Sections
401(a)(17) and 401(a)(4) of the Code, and calculated using Earnings as defined
in this Program, but only to the extent that such amount exceeds the Retirement
Contributions under the RCP. Such Retirement Contributions shall be made for
each Participant on the same terms and conditions, at the same times, and
pursuant to the same elections made by the Participant as they would have been
if paid under the RCP, were not for such limitations on benefits or Earnings.
3.2 For the period prior to July 1, 1997, as of the last day of each
calendar month, the Corporation shall credit each Participant's Individual
Account with deemed interest with respect to the then balance of the
Participant's Individual Account equal to 1% plus the rate shown for U.S.
Treasury Notes with a remaining maturity closest to, but not exceeded, 7 years,
in the "representative mid-afternoon over the counter quotations supplied by the
Federal Reserve Bank of New York City, based on transactions of $1 million or
more," as reported in The Wall Street Journal published on the last business day
of each calendar month; provided, however, the Committee may change this
crediting rating at any time for deemed interest not yet credited to an
Individual Account.
3.3 After June 30, 1997, each Participant's Retirement Contributions under
this Program shall be considered allocated to the Investment Funds in the same
proportion as the Participant has elected under the RCP pursuant to Section 6.1
thereof.
3.4 After June 30, 1997, reallocations between Investment Funds shall be
considered made at the same time, in the same proportionate amount, and to and
from the same Investment Funds under this Program as those made by the
Participant under Section 6.3 of the RCP; provided,
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<PAGE> 4
however, that if such Participant has no account balance under the RCP, the
Participant may make separate reallocation elections hereunder in a manner
prescribed by the Committee.
3.5 After June 30, 1997, the Corporation shall credit each Participant's
Individual Account with earnings, gains and losses as if such accounts held
actual assets and such assets were invested among such Investment Funds, in the
same proportion as the Participant has invested in the RCP; provided, however,
that if such Participant has no account balance under the RCP, the Participant
may make separate investment elections hereunder in the manner prescribed by the
Committee.
ARTICLE 4
DISTRIBUTIONS OF BENEFIT SUPPLEMENT
4.1 Retirement Benefit. Subject to Section 4.5 below, upon a Participant's
Retirement Date, he shall be entitled to receive the amount of his Individual
Account. The form of benefit payment, and the time of commencement of such
benefit, shall be as provided in Section 4.4.
4.2 Termination Benefit. Upon the Termination of Service of a Participant
prior to his Retirement Date, for reasons other than death, the Corporation
shall pay to the Participant, a benefit equal to his Individual Account.
Unless otherwise directed by the Committee, the termination benefit shall
be payable in a lump sum as set forth in Section 4.9 following the Participant's
Termination of Service. Upon payment following a Termination of Service, the
Participant shall immediately cease to be eligible for any other benefit
provided under this Program.
4.3 Death Benefits. Upon the death of a Participant or a retired
Participant, the Beneficiary of such Participant shall receive the Participant's
remaining Individual Account. Payment of a Participant's remaining Individual
Account shall be made in accordance with Section 4.4.
4.4 Form of Benefit Payment.
(a) Upon the happening of an event described in Sections 4.1, 4.2 or
4.3, the Corporation shall pay to the Participant the amount specified
therein in a lump sum.
(b) In the event that a Participant retires as described in Section
4.1, the Participant may, with the consent of the Committee, elect an
installment form of benefit payments. The written request must be made
prior to December 31 of the calendar year preceding the Participant's
Retirement Date. The Committee may, in its sole discretion, grant the
Participant's request.
(c) In the event of the death of the Participant, the Participant's
Beneficiary may, with the consent of the Committee, elect an installment
form of benefit payment. This written request must be made no later than
thirty (30) days after the Participant's date of death. The Committee may,
in its sole discretion, grant such Beneficiary's request.
(d) In the event that installment payments are to be made pursuant to
Subsections 4.4(b) or (c), such payments shall be in annual installments,
payable on a monthly basis. Such annual installments shall be payable using
a declining balance method over a period, no less than two (2) calendar
years and no more than twenty (20) calendar years.
Initially, the amount of any installments under the installment form
of payment described in this Subsection 4.4(d) shall be equal to the
balance of the Participant's Individual Account to be distributed divided
by the number of annual installments to be paid. The amount of the
installment payments shall be recomputed annually and the installment
payments shall be increased or decreased to reflect any changes in the
Participant's Individual Account due to fluctuations in earnings, gains and
losses on the remaining balance and the number of remaining annual
installments. Monthly installment payments will be made on the last
business day of each calendar month.
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<PAGE> 5
4.5 Limitations on the Annual Amount Paid to a Participant.
Notwithstanding any other provisions of this Program to the contrary, in the
event that a portion of the payments due a Participant pursuant to Sections 4.1,
4.2, 4.3 or 4.4 would not be deductible by the Corporation pursuant to Section
162(m) of the Code, the Corporation, at its discretion, may postpone payment of
such amounts to the Participant until such time that the payments would be
deductible by the Corporation; provided, however, that no payment postponed
pursuant to this Section 4.5 shall be postponed beyond the first anniversary of
such Participant's Termination of Service.
4.6 Change of Control and Lump Sum Payments.
(a) If there is a Change of Control, notwithstanding any other
provision of this Program, any Participant who has an Individual Account
hereunder may, at any time during a twenty-four (24) month period
immediately following a Change of Control, elect to receive an immediate
lump sum payment of the balance of his Individual Account, reduced by a
penalty equal to ten percent (10%) of the Participant's Individual Account
as of the last business day of the month preceding the date of the
election. The ten percent (10%) penalty shall be permanently forfeited and
shall not be paid to, or in respect of, the Participant.
(b) If there is a Change of Control, notwithstanding any other
provision of this Program, any retired Participant, or Beneficiary, who has
an Individual Account hereunder may, at any time during a twenty-four (24)
month period immediately following a Change of Control, elect to receive an
immediate lump sum payment of the balance of his Individual Account,
reduced by a penalty equal to five percent (5%) of the Participant's
Individual Account as of the last business day of the month preceding the
date of the election. The five percent (5%) penalty of the retired
Participant's or Beneficiary's Individual Account shall be permanently
forfeited and shall not be paid to, or in respect of, the retired
Participant or Beneficiary.
(c) In the event no such request is made by a Participant, a retired
Participant or Beneficiary, the Program shall remain in full force and
effect.
4.7 Change in Credit Rating and Lump Sum Payments.
In the event the Corporation's financial rating falls below Investment
Grade, a Participant, retired Participant, or Beneficiary may at any time during
a six (6) month period following the reduction in the Corporation's financial
rating, elect to receive an immediate lump sum payment of the balance of his
Individual Account reduced by a penalty equal to ten percent (10%) of the
Participant's Individual Account or five percent (5%) of the retired
Participant's or Beneficiary's Individual Account as of the last business day of
the month preceding the election. The penalties accrued hereunder shall be
permanently forfeited and shall not be paid to, or in respect of, the
Participant, retired Participant or Beneficiary.
In the event no such request is made by a Participant, retired Participant
or Beneficiary, the Program shall remain in full force and effect.
4.8 Tax Withholding. To the extent required by law, the Corporation shall
withhold any taxes required to be withheld by any Federal, State or local
government.
4.9 Commencement of Payments. Unless otherwise provided, commencement of
payments under Section 4.6 or 4.7 of this Program shall be as soon as
administratively feasible on or after the last business day of the month
following receipt of notice and approval by the Committee of an event which
entitles a Participant or a Beneficiary to payments under this Program. Unless
otherwise provided, commencement of payments under Section 4.1, 4.2 or 4.3 of
this Program shall be payable in the first calendar quarter of the year
following the Plan year in which the Participant terminates employment from the
Corporation for any reason; provided, however, that such a termination shall not
be deemed to occur until immediately following the receipt of all payment due to
the Employee under the Scott Paper Company Termination Pay Plan for Salaried
Employees.
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<PAGE> 6
4.10 Recipients of Payments; Designation of Beneficiary. All payments to
be made by the Corporation under the Program shall be made to the Participant
during his lifetime, provided that if the Participant dies prior to the
completion of such payments, then all subsequent payments under the Program
shall be made by the Corporation to the Beneficiary determined in accordance
with this Section. The Participant may designate a Beneficiary by filing a
written notice of such designation with the Committee in such form as the
Committee requires and may include contingent Beneficiaries. The Participant may
from time-to-time change the designated Beneficiary by filing a new designation
in writing with the Committee. If no designation is in effect at the time when
any benefits payable under this Plan shall become due, the Beneficiary shall be
the spouse of the Participant, or if no spouse is then living, the
representatives of the Participant's estate.
ARTICLE 5
VESTING
5.1 The balance of a Participant's Individual Account shall be 100% vested
at the same time as if the amounts had been credited to the Participant's
Account under the RCP.
ARTICLE 6
FUNDING
6.1 The Board may, but shall not be required to, authorize the
establishment of a trust by the Corporation to serve as the funding vehicle for
the benefits described herein. In any event, the Corporation's obligations
hereunder shall constitute a general, unsecured obligation, payable solely out
of its general assets, and no Participant shall have any right to any specific
assets of the Corporation.
ARTICLE 7
ADMINISTRATION
7.1 The Committee shall administer this Program and shall have the same
powers and duties, and shall be subject to the same limitations as are set forth
in the Kimberly-Clark Corporation Salaried Employees Incentive Investment Plan.
ARTICLE 8
AMENDMENT AND TERMINATION
8.1 The Corporation, by action of the Board, or the Compensation Committee
as designated by the Board, shall have the right at any time to amend this
Program in any respect, or to terminate this Program; provided, however, that no
such amendment or termination shall operate to reduce the benefit that has
accrued for any Participant who is participating in the Program nor the payment
due to a terminated Participant at the time the amendment or termination is
adopted. Continuance of the Program is completely voluntary and is not assumed
as a contractual obligation of the Corporation. Notwithstanding the foregoing,
this Program shall terminate when the RCP terminates.
Any action permitted to be taken by the Board, or the Compensation
Committee as designated by the Board, under the foregoing provision regarding
the modification, alteration or amendment of the Program may be taken by the
Committee, using its prescribed procedures, if such action
(a) is required by law, or
(b) is estimated not to increase the annual cost of the Program by
more than $1,000,000.
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<PAGE> 7
Any action taken by the Board, the Compensation Committee as designated by
the Board, or Committee shall be made by or pursuant to a resolution duly
adopted by the Board, the Compensation Committee as designated by the Board, or
Committee and shall be evidenced by such resolution or by a written instrument
executed by such persons as the Board, the Compensation Committee as designated
by the Board, or Committee shall authorize for such purpose.
The Committee shall report to the Chief Executive Officer of the
Corporation before January 31 of each year all action taken by it hereunder
during the preceding calendar year.
ARTICLE 9
MISCELLANEOUS
9.1 Nothing contained herein (a) shall be deemed to exclude a Participant
from any compensation, bonus, pension, insurance, termination pay or other
benefit to which he otherwise is or might become entitle to as an Employee or
(b) shall be construed a conferring upon an Employee the right to continue in
the employ of the Corporation as an executive or in any other capacity;
provided, however, that if, at the time payments or installments of payments are
to be made hereunder, the Participant or the Beneficiary are indebted or
obligated to the Corporation, then the payments remaining to be made to the
Participant or the Beneficiary may, at the discretion of the Corporation, be
reduced by the amount of such indebtedness or obligation, provided, however,
that an election by the Corporation not to reduce any such payment or payments
shall not constitute a waiver of its claim for such indebtedness or obligation.
9.2 Any amounts payable by the Corporation hereunder shall not be deemed
salary or other compensation to a Participant for the purposes of computing
benefits to which the Participant may be entitled under any other arrangement
established by the Corporation for the benefit of its Employees.
9.3 The rights and obligations created hereunder shall be binding on a
Participant's heirs, executors and administrators and on the successors and
assigns of the Corporation.
9.4 The Program shall be construed and governed by the laws of the State
of Wisconsin.
9.5 The rights of any Participant under this Program are personal and may
not be assigned, transferred, pledged or encumbered. Any attempt to do so shall
be void.
9.6 Neither the Corporation, its Employees, agents, any member of the
Board, the Plan Administrator nor the Committee shall be responsible or liable
in any manner to any Participant, Beneficiary, or any person claiming through
them for any benefit or action taken or omitted in connection with the granting
of benefits, the continuation of benefits or the interpretation and
administration of this Program.
9.7 An application or claim for a benefit under the RCP shall constitute a
claim for a benefit under this Program.
9.8 The Corporation is the plan sponsor. All actions shall be taken by the
Corporation in its sole discretion, not as a fiduciary, and need not be applied
uniformly to similarly situated individuals.
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<PAGE> 8
IN WITNESS WHEREOF, the Corporation has adopted this Kimberly-Clark
Corporation Retirement Contribution Excess Benefit Program effective as of
January 1, 1997.
KIMBERLY-CLARK CORPORATION
By:
---------------------------------
Wayne R. Sanders
Chairman of the Board and
Chief Executive Officer
8
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Kimberly-Clark Corporation on Form S-8 of our reports dated January 30, 1996,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Kimberly-Clark Corporation for the year ended December 31, 1995.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Dallas, Texas
December 4, 1996
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 and in the related Prospectus of Kimberly-Clark Corporation of our
report, which makes reference to the Company adopting the provisions of
Statement of Financial Accounting Standards No. 121 in 1995 and that our audit
did not include the 1995 provisions for restructuring and other unusual charges
which were audited by other auditors, dated January 30, 1996, on our audits of
the consolidated financial statements of Scott Paper Company and subsidiaries as
of December 30, 1995 and December 31, 1994 and for the years then ended,
appearing in and incorporated by reference in the Annual Report on Form 10-K
under the Securities Exchange Act of 1934 of Kimberly-Clark Corporation for the
year ended December 31, 1995.
/s/ Coopers & Lybrand
2400 Eleven Penn Center
Philadelphia, Pennsylvania
December 3, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 and in the related Prospectus of Kimberly-Clark
Corporation of our report dated January 25, 1994, except as to the
classification of S.D. Warren as a discontinued operation, which is as of
December 20, 1994, which appears on page 25 in the Annual Report on Form 10-K of
Kimberly-Clark Corporation for the year ended December 31, 1995. We also consent
to the incorporation by reference of our report on the Financial Statement
Schedule, which appears on page 27 of such Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Philadelphia, PA
December 3, 1996
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ JOHN F. BERGSTROM
------------------------------------
John F. Bergstrom
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ PASTORA SAN JUAN CAFFERTY
------------------------------------
Pastora San Juan Cafferty
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ PAUL J. COLLINS
------------------------------------
Paul J. Collins
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ ROBERT W. DECHERD
------------------------------------
Robert W. Decherd
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ WILLIAM O. FIFIELD
------------------------------------
William O. Fifield
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ CLAUDIO X. GONZALEZ
------------------------------------
Claudio X. Gonzalez
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ LOUIS E. LEVY
------------------------------------
Louis E. Levy
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ FRANK A. McPHERSON
------------------------------------
Frank A. McPherson
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ LINDA JOHNSON RICE
------------------------------------
Linda Johnson Rice
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ WOLFGANG R. SCHMITT
------------------------------------
Wolfgang R. Schmitt
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the registration under
the Securities Act of shares of the Corporation's common stock, $1.25 par value,
and/or plan interests under and in accordance with the Kimberly-Clark
Corporation Retirement Contribution Plan and the Kimberly-Clark Corporation
Retirement Contribution Excess Benefit Program, and to execute any and all
amendments to such Registration Statement, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any one
of them, or his substitute or their substitutes, lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of November,
1996.
/s/ RANDALL L. TOBIAS
------------------------------------
Randall L. Tobias
