REGISTRATION NO. 33-_____________
_____________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BOWATER INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 62-0721803
(State or other jurisdiction of (I.R.S. employer identification
incorporation or organization) number)
55 East Camperdown Way
P.O. Box 1028
Greenville, South Carolina 29602
(Address of Principal Executive Offices) (Zip Code)
BOWATER COMMUNICATION PAPERS INC. EMPLOYEES' SAVINGS PLAN
(Full Title of the Plan)
Wendy C. Shiba, Esquire
Secretary and Assistant General Counsel
Bowater Incorporated
55 East Camperdown Way
P.O. Box 1028
Greenville, South Carolina 29602
(Name and address of agent for service)
(803) 271-7733
(telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum
Securities Aggregate Aggregate Amount of
to be Amount to be Offering Offering Registration
Registered* Registered Price per Share* Price* Fee
- -------------------------------------------------------------------------
Common Stock,
par value
$1.00
per share 75,000 shares $41.19 $3,089,250 $1,065.26
* This Registration Statement also pertains to (1) Common Stock
Rights that are currently evidenced by certificates for shares of Common
Stock and automatically trade with such Common Stock, and (2) an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein in accordance with Rule 416(c)
under the Securities Act of 1933.
** Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457 under the Securities Act of 1933 based on the
average of the high and low prices that the Common Stock of Bowater
Incorporated was sold for on the New York Stock Exchange on November 15,
1995.
_____________________________________
This registration statement shall become effective in accordance
with the provisions of Section 8(a) of the Securities Act of 1933 and
Rule 462 promulgated thereunder.
<PAGE>
PART I.
Information Required in the Section 10(a) Prospectus
The information required by Items 1 and 2 of Form S-8 is not
required to be filed as part of this Registration Statement in connection
with the registration of the offering of the Registrant's Common Stock
allocated to the accounts of participants in the Bowater Communication
Papers Inc. Employees' Savings Plan (the "Plan") and such information
will be delivered to persons eligible to participate in the Plan.
PART II.
Information Required in the Registration Statement
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Bowater Incorporated (the
"Company") and the Plan with the Securities and Exchange Commission are
incorporated into this Registration Statement:
(1) the latest annual reports of the Company and the Plan filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), or, in the case of the Company, the latest
prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933
(the "Securities Act") that contains audited financial statements for the
Company's latest fiscal year for which such statements have been filed;
(2) all other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
Company annual report or prospectus referred to in (1) above; and
(3) the description of the Company's Common Stock, $1.00 par
value per share, contained in a registration statement filed under
Section 12 of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
In addition, all documents subsequently filed by the Company and the
Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
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 in this Registration Statement and to be a part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
empowers a corporation to 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 or she is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise. Depending on the character of the proceeding, a corporation
may indemnify against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding if the person indemnified
acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. In the case of an action by or
in the right of the corporation, no indemnification may 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. Section 145 further provides that to the extent a director,
officer, employee or agent of a corporation has been successful on the
merits or otherwise in the defense of any action, suit or proceeding
referred to above or in the defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in
connection therewith. The foregoing statement is subject to the detailed
provisions of Section 145 of the Delaware General Corporation Law.
The Restated Certificate of Incorporation of the Company provides,
in effect, that, to the extent and under the circumstances permitted by
Section 145 of the General Corporation Law of the State of Delaware, the
Company shall indemnify any person who was or is a party or is threatened
to be made a party to any action, suit or proceeding of the type
described above by reason of the fact that he or she is or was a
director, officer, employee or agent of the Company or is or was serving
at the request of the Company as a director, officer, employee or agent
of another enterprise.
There is a directors and officers liability insurance policy which
is presently outstanding insuring directors and officers of the Company
and its subsidiaries. Reimbursement by the Company of the officer and
director liability as allowed by the Restated Certificate of
Incorporation is recoverable under the insurance policy subject to a
deductible for each loss.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Restated Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 4.2 to the Company's Registration
Statement No. 33-51569).
4.2 Certificate of Designations of the 7% PRIDES, Series B
Convertible Preferred Stock of the Company (incorporated by reference to
Exhibit 4.1 to the Company's Current Report on Form 8-K dated February 1,
1994).
4.3 Certificate of Designations of the 8.40% Series C Cumulative
Preferred Stock of the Company (incorporated by reference to Exhibit 4.2
to the Company's Current Report on Form 8-K dated February 1, 1994).
4.4 Bylaws of the Company (incorporated by reference to Exhibit 3.1
to the Company's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1995).
4.5 Agreement pursuant to S-K Item 601(b)(4)(iii)(A) to provide the
Commission upon request copies of certain other instruments with respect
to long-term debt not being registered where the amount of securities
authorized under each such instrument does not exceed 10% of the total
assets of the registrant and its subsidiaries on a consolidated basis
(incorporated by reference to Exhibit 4.3 to the Company's Registration
Statement No. 2-93455).
4.6 Rights Agreement between the Company and Morgan Guaranty Trust
Company of New York (incorporated by reference to Exhibit 4.6 to the
Company's Registration Statement No. 33-61219).
4.6.1 Addendum to Rights Agreement substituting The Bank of New York as
successor Rights Agent (incorporated by reference to Exhibit 4.6.1 to
the Company's Registration Statement No. 33-61219).
4.7 Indenture, dated as of August 1, 1989, by and between the Company
and Manufacturers Hanover Trust Company, as Trustee, with respect to the
9% Debentures Due 2009 (incorporated by reference to Exhibit 4.7 to the
Company's Registration Statement No. 33-61219).
4.8 Indenture, dated as of December 1, 1991, by and between the
Company and Marine Midland Bank, N.A., as Trustee, with respect to the 9-
3/8% Debentures Due 2021 (incorporated by reference to Exhibit 4.8 to the
Company's Annual Report on Form 10-K for 1991).
4.9 Indenture, dated as of December 1, 1991, by and between the
Company and Marine Midland Bank, N.A., as Trustee, with respect to the 8-
1/2% Notes Due 2001 (incorporated by reference to Exhibit 4.9 to the
Company's Annual Report on Form 10-K for 1991).
4.10 Indenture, dated as of October 15, 1992, by and between the
Company and The Chase Manhattan Bank (N.A.) as Trustee, with respect to
the 8-1/4% Notes Due 1999 (incorporated by reference to Exhibit 4.10 to
the Company's Annual Report on Form 10-K for 1992).
4.11 Indenture, dated as of October 15, 1992, between the Company and
The Chase Manhattan Bank (N.A.) as Trustee, with respect to the 9-1/2%
Debentures Due 2012 (incorporated by reference to Exhibit 4.11 to the
Company's Annual Report on Form 10-K for 1992).
4.12 Deposit Agreement, dated as of February 1, 1994, by and among the
Company, Trust Company Bank, as Depositary, and the holders from time to
time of the Depositary Receipts relating to the Company's 7% PRIDES,
Series B Convertible Preferred Stock, together with form of Depositary
Receipt (incorporated by reference to Exhibit 4.3 to the Company's
Current Report on Form 8-K dated February 1, 1994).
4.13 Deposit Agreement, dated as of February 1, 1994, by and among the
Company, Trust Company Bank, as Depositary, and the holders from time to
time of the Depositary Receipts relating to the Company's 8.40% Series C
Cumulative Preferred Stock, together with form of Depositary Receipt
(incorporated by reference to Exhibit 4.4 to the Company's Current Report
on Form 8-K dated February 1, 1994).
23 Consent of KPMG Peat Marwick LLP dated November 15, 1995 is filed
herewith.
24 Powers of Attorney authorizing the signing of the Registration
Statement and amendments hereto on behalf of the Company's directors.
99 Bowater Communication Papers Inc. Employees' Savings Plan, as
amended, is filed herewith.
ITEM 9. UNDERTAKINGS
1. 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 (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. 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) of the Securities Act if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed 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.
2. 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
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.
3. 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
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling 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.
4. Pursuant to Item 8 of Form S-8, registrant undertakes that it
will submit or has submitted the Plan and any amendment 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 Plan.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Greenville,
State of South Carolina, on the 16th day of November, 1995.
BOWATER INCORPORATED
(Registrant)
/S/ Arnold M. Nemirow
By_________________________________
Arnold M. Nemirow
Its President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
*
_____________________ Director and Chairman of November 16, 1995
Anthony P. Gammie the Board
/S/ Arnold M. Nemirow
_____________________ Director, President and November 16, 1995
Arnold M. Nemirow Chief Executive Officer
/S/ David G. Maffucci
_____________________ Senior Vice President - November 16, 1995
David G. Maffucci Chief Financial Officer
and Treasurer
/S/ Michael F. Nocito
_____________________ Vice President - Controller November 16, 1995
Michael F. Nocito
*
_____________________ Director November 16, 1995
Francis J. Aguilar
*
_____________________ Director November 16, 1995
Hugh D. Aycock
*
______________________ Director November 16, 1995
Richard Barth
*
______________________ Director November 16, 1995
Kenneth M. Curtis
*
_____________________ Director November 16, 1995
H. Gordon MacNeill
*
_____________________ Director November 16, 1995
Donald R. Melville
*
_____________________ Director November 16, 1995
John A. Rolls
* Wendy C. Shiba, by signing her name hereto, does sign this document on
behalf of the persons indicated above pursuant to powers of attorney duly
executed by such persons.
/S/ Wendy C. Shiba
By ___________________________
Wendy C. Shiba
___________________________
Attorney-in-Fact
THE PLAN. Pursuant to the requirements of the Securities Act of
1933, the Trustee (or other persons who administer the Employee Benefit
Plan) has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Greenville, State of South Carolina, as of November 16, 1995.
BOWATER COMMUNICATION PAPERS INC.
EMPLOYEES' SAVINGS PLAN
/S/ Aaron B. Whitlock
By:_______________________
Aaron B. Whitlock
_______________________
Plan Administrator
<PAGE>
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 4.2 to the Company's Registration
Statement No. 33-51569).
4.2 Certificate of Designations of the 7% PRIDES, Series B
Convertible Preferred Stock of the Company (incorporated by reference to
Exhibit 4.1 to the Company's Current Report on Form 8-K dated February 1,
1994).
4.3 Certificate of Designations of the 8.40% Series C Cumulative
Preferred Stock of the Company (incorporated by reference to Exhibit 4.2
to the Company's Current Report on Form 8-K dated February 1, 1994).
4.4 Bylaws of the Company (incorporated by reference to Exhibit 3.1
to the Company's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1995).
4.5 Agreement pursuant to S-K Item 601(b)(4)(iii)(A) to provide the
Commission upon request copies of certain other instruments with respect
to long-term debt not being registered where the amount of securities
authorized under each such instrument does not exceed 10% of the total
assets of the registrant and its subsidiaries on a consolidated basis
(incorporated by reference to Exhibit 4.3 to the Company's Registration
Statement No. 2-93455).
4.6 Rights Agreement between the Company and Morgan Guaranty Trust
Company of New York (incorporated by reference to Exhibit 4.6 to the
Company's Registration Statement No. 33-61219).
4.6.1 Addendum to Rights Agreement substituting The Bank of New York as
successor Rights Agent (incorporated by reference to Exhibit 4.6.1 to
the Company's Registration Statement No. 33-61219).
4.7 Indenture, dated as of August 1, 1989, by and between the Company
and Manufacturers Hanover Trust Company, as Trustee, with respect to the
9% Debentures Due 2009 (incorporated by reference to Exhibit 4.7 to the
Company's Registration Statement No. 33-61219).
4.8 Indenture, dated as of December 1, 1991, by and between the
Company and Marine Midland Bank, N.A., as Trustee, with respect to the 9-
3/8% Debentures Due 2021 (incorporated by reference to Exhibit 4.8 to the
Company's Annual Report on Form 10-K for 1991).
4.9 Indenture, dated as of December 1, 1991, by and between the
Company and Marine Midland Bank, N.A., as Trustee, with respect to the 8-
1/2% Notes Due 2001 (incorporated by reference to Exhibit 4.9 to the
Company's Annual Report on Form 10-K for 1991).
4.10 Indenture, dated as of October 16, 1992, by and between the
Company and The Chase Manhattan Bank (N.A.) as Trustee, with respect to
the 8-1/4% Notes Due 1999 (incorporated by reference to Exhibit 4.10 to
the Company's Annual Report on Form 10-K for 1992).
4.11 Indenture, dated as of October 16, 1992, between the Company and
The Chase Manhattan Bank (N.A.) as Trustee, with respect to the 9-1/2%
Debentures Due 2012 (incorporated by reference to Exhibit 4.11 to the
Company's Annual Report on Form 10-K for 1992).
4.12 Deposit Agreement, dated as of February 1, 1994, by and among the
Company, Trust Company Bank, as Depositary, and the holders from time to
time of the Depositary Receipts relating to the Company's 7% PRIDES,
Series B Convertible Preferred Stock, together with form of Depositary
Receipt (incorporated by reference to Exhibit 4.3 to the Company's
Current Report on Form 8-K dated February 1, 1994).
4.13 Deposit Agreement, dated as of February 1, 1994, by and among the
Company, Trust Company Bank, as Depositary, and the holders from time to
time of the Depositary Receipts relating to the Company's 8.40% Series C
Cumulative Preferred Stock, together with form of Depositary Receipt
(incorporated by reference to Exhibit 4.4 to the Company's Current Report
on Form 8-K dated February 1, 1994).
23 Consent of KPMG Peat Marwick LLP dated November 15, 1995 is filed
herewith.
24 Powers of Attorney authorizing the signing of the Registration
Statement and amendments hereto on behalf of the Company's directors.
99 Bowater Communication Papers Inc. Employees' Savings Plan, as
amended, is filed herewith.
[f:\fallon\bowater\bcpi\s-8.red]
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Bowater Incorporated
We consent to the use of our report dated February 10, 1995 on the
financial statements of Bowater Incorporated (the Company) for the three-
year period ended December 31, 1994, incorporated herein by reference,
which report appears in the December 31, 1994 Annual Report on Form 10-K
of Bowater Incorporated, and to our report dated June 16, 1995 on the
financial statements of the Bowater Communication Papers Incorporated
Employees' Savings Plan (the Plan) for the two years ended December 31,
1994, incorporated herein by reference, which report appears in the
December 31, 1994 Annual Report on Form 11-K of the Plan.
Our report covering the December 31, 1992 financial statements of Bowater
Incorporated refers to accounting changes regarding the Company's
adoption of the provisions of the Financial Accounting Standards Board's
Statement on Financial Accounting Standards No. 106, "Employers'
Accounting for Postretirement Benefits Other Than Pensions," and
Statement of Financial Accounting Standards No. 109, "Accounting for
Income Taxes," in 1992.
Greenville, South Carolina /s/ KPMG Peat Marwick LLP
November 15, 1995 __________________________
[f:\fallon\bowater\exh-23.bcp]
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned directors of Bowater Incorporated, hereby
severally constitute Ecton R. Manning, David G. Maffucci and Wendy C.
Shiba, and each of them singly, our true and lawful attorneys with full
power of substitution, to sign for us and in our names in the capacities
listed below, (1) a Registration Statement on Form S-8 pertaining to the
Bowater Communication Papers Inc. Employees' Savings Plan (the "Plan")
and any and all amendments to such Registration Statement and (2) a Post-
Effective Amendment to the Registration Statement on Form S-8
(Registration No. 33-22297) and any and all amendments to such
Registration Statement, and generally to do all such things in our names
and on our behalf in our capacities as directors to enable Bowater
Incorporated to comply with the provisions of the Securities Act of 1933,
as amended, all requirements of the Securities and Exchange Commission,
and all requirements of any other applicable law or regulation, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to such Registration Statement and Post-
Effective Amendment and any and all amendments thereto, including
post-effective amendments.
Signatures Title Date
/s/ Anthony P. Gammie
__________________________ Director and Chairman of November 15, 1995
Anthony P. Gammie the Board
/s/ Francis J. Aguilar
__________________________ Director November 15, 1995
Francis J. Aguilar
/s/ Hugh D. Aycock
__________________________ Director November 15, 1995
Hugh D. Aycock
/s/ Richard Barth
__________________________ Director November 15, 1995
Richard Barth
/s/ Kenneth M. Curtis
__________________________ Director November 15, 1995
Kenneth M. Curtis
/s/ H. Gordon MacNeill
__________________________ Director November 15, 1995
H. Gordon MacNeill
/s/ Donald R. Melville
__________________________ Director November 15, 1995
Donald R. Melville
/s/ John A. Rolls
__________________________ Director November 15, 1995
John A. Rolls
[f:\fallon\bowater\bcpi\exh-24.bcp]
EXHIBIT 99
BOWATER COMMUNICATION PAPERS INC.
EMPLOYEES' SAVINGS PLAN
(As Amended and Restated Effective January 1, 1989,
Including Amendments through December 9, 1994)
PREAMBLE
Establishment of Plan
The Bowater Computer Forms Inc. Employees' Savings Plan ("Bowater
Forms Prior Plan") was established effective January 1, 1982 for the
benefit of eligible employees of Bowater Computer Forms, Inc., and of
such of its subsidiaries as might adopt the Plan. The Plan was amended
and restated, effective January 1, 1985, to provide for employee
contributions under Section 401(k) of the Internal Revenue Code, to
facilitate voluntary investments in shares of Bowater Incorporated Stock
and to provide for payroll-based employee stock ownership contributions
(effective January 1, 1984).
The Star Forms, Inc. Savings and Investment Plan ("Star Prior Plan")
was established effective January 1, 1984 for the benefit of eligible
employees of Star Forms, Inc. and of such of its subsidiaries or
affiliated organizations as might adopt the Plan.
Restatements of Plan
The purposes of the 1988 amendment and restatement were to reflect
the combination of Bowater Computer Forms Inc. and Star Forms, Inc. into
Bowater Communication Papers Inc. and to provide for the merger of the
two Prior Plans into this Plan for the benefit of eligible employees of
the Company, and of such of its subsidiaries and affiliated organizations
as might adopt the Plan, to provide consistent benefits for eligible
employees, to incorporate amendments previously made to the Prior Plans,
and to make certain additional legal compliance and technical changes.
The purpose of the 1989 amendment and restatement of the Plan is to bring
the Plan into compliance with the requirements of the Tax Reform Act of
1986, as amended, and regulations thereunder. Unless otherwise noted,
the provisions of this Plan apply only to individuals who are active Plan
participants on or after July 1, 1989. The rights and benefits, if any,
of a former employee whose employment terminated before January 1, 1989,
and who is not reemployed on or after such date, shall be determined in
accordance with the provisions of the Prior Plan in which he was a
Participant in effect on the date his employment terminated.
Objective of Plan
The objective of the Plan is to enhance the existing benefit
programs of the Company with respect to eligible Employees and to
encourage such Employees to further their own financial independence.
The Plan is designed to provide a systematic method of savings through
regular contributions by eligible Employees. Employee contributions will
be supplemented by Employer contributions. All funds contributed will be
held in trust, as described hereinafter, and invested to achieve the
objective of the Plan. The Plan and the Trust forming a part thereof are
intended to meet the requirements of Sections 401(a), 401(k), and 501(a)
of the Internal Revenue Code of 1986, as amended from time to time and
the provisions of the Employee Retirement Income Security Act of 1974, as
amended from time to time.
Table of Contents
ARTICLE 1: DEFINITIONS 1
1.01 ACCOUNTS 1
1.02 ACTIVE PARTICIPANT 1
1.03 AFFILIATED COMPANY 1
1.04 AFTER-TAX EMPLOYEE CONTRIBUTION ACCOUNT 1
1.05 BENEFICIARY 1
1.06 BOARD 2
1.07 BOWATER OR BOWATER INCORPORATED 2
1.08 BOWATER FORMS PRIOR PLAN 2
1.09 CODE 2
1.10 COMPANY 2
1.11 COMPANY CONTRIBUTION ACCOUNT 3
1.12 CURRENT OR ACCUMULATED PROFITS 3
1.13 DISABILITY 3
1.14 EARNINGS 3
1.15 EFFECTIVE DATE 4
1.16 EMPLOYEE 4
1.17 EMPLOYEE STOCK OWNERSHIP ACCOUNT 4
1.18 EMPLOYER 4
1.19 EMPLOYMENT 4
1.20 ENROLLMENT DATE 4
1.21 ERISA 4
1.22 FIDUCIARY 4
1.23 FORFEITURES 4
1.24 HOUR OF SERVICE 5
1.25 INVESTMENT FUNDS 5
1.26 PARTICIPANT 5
1.27 PLAN 5
1.28 PLAN ADMINISTRATOR 5
1.29 PLAN SPONSOR 5
1.30 PLAN YEAR 5
1.31 PRIOR PLANS 5
1.32 RETIREMENT 5
1.33 ROLLOVER CONTRIBUTION ACCOUNT 5
1.34 SEVERANCE FROM SERVICE DATE 6
1.35 SHARE OF BOWATER STOCK 6
1.36 SPECIFIED HARDSHIP WITHDRAWAL 6
1.37 SPOUSE 7
1.38 STAR PRIOR PLAN 7
1.39 TAX DEFERRED EMPLOYEE CONTRIBUTION ACCOUNT 7
1.41 TRUST FUND 7
1.42 VALUATION DATE 7
1.43 VESTED VALUE 7
1.44 VESTING DATE 7
1.45 YEAR OF BREAK IN SERVICE 8
1.46 YEARS OF SERVICE 8
ARTICLE 2: ELIGIBILITY AND PARTICIPATION 9
2.01 ELIGIBILITY 9
2.02 PARTICIPATION 9
2.03 CESSATION OF ACTIVE PARTICIPATION 9
2.04 EFFECT OF REEMPLOYMENT ON PLAN ENTRY OR REENTRY 10
2.05 PRIOR EMPLOYMENT WITH AN AFFILIATED COMPANY 10
ARTICLE 3: PARTICIPANT CONTRIBUTIONS 12
3.01 TAX-DEFERRED EMPLOYEE CONTRIBUTIONS 12
3.02 AFTER-TAX EMPLOYEE CONTRIBUTIONS 12
3.03 MODE OF PAYMENT 12
3.04 LIMITATIONS ON TAX-DEFERRED CONTRIBUTIONS 12
3.05 LIMITATIONS ON AFTER-TAX CONTRIBUTIONS 13
3.06 CHANGE IN AMOUNT OF CONTRIBUTIONS 14
3.07 VOLUNTARY SUSPENSION OF PARTICIPANT CONTRIBUTIONS 15
3.08 ROLLOVER CONTRIBUTIONS 15
3.09 EMPLOYMENT WITH AFFILIATED COMPANY 16
ARTICLE 4: EMPLOYER CONTRIBUTIONS 17
4.01 CONTRIBUTION SCHEDULE 17
4.02 MODE OF PAYMENT 17
4.03 FORFEITURES 17
4.04 RETURN OF CERTAIN CONTRIBUTIONS TO EMPLOYER 17
4.05 STATUTORY LIMITATION ON ADDITIONS 18
4.06 COMBINED PLANS LIMITATION 20
ARTICLE 5: INVESTMENT OPTIONS 21
5.01 INVESTMENT OF PARTICIPANT AND EMPLOYER CONTRIBUTIONS 21
5.02 INVESTMENT ELECTIONS BY PARTICIPANTS 22
5.03 CHANGES IN CURRENT INVESTMENT ELECTIONS 22
5.04 TRANSFERS OF ACCOUNTS 22
ARTICLE 6: VALUATION OF PARTICIPANTS' ACCOUNTS 24
6.01 ACCOUNTS 24
6.02 VALUATION OF ACCOUNTS 24
6.03 AMOUNT OF PARTICIPANT'S ACCOUNTS 24
6.04 STATEMENT OF PARTICIPANT ACCOUNTS 25
6.05 TIMING OF CREDITS AND DEDUCTIONS 25
ARTICLE 7: BENEFITS UPON RETIREMENT, DEATH, DISABILITY,
OR TERMINATION 26
7.01 RETIREMENT 26
7.02 DEATH 26
7.03 DISABILITY 26
7.04 OTHER TERMINATION OF EMPLOYMENT AND VESTING 26
7.05 TRANSFER OF EMPLOYMENT 26
7.06 ELECTION OF BENEFITS 27
7.07 METHOD OF PAYMENT 28
7.08 PROOF OF DEATH AND RIGHT OF BENEFICIARY 28
7.09 AUTOMATIC FORMS OF DISTRIBUTION FOR CERTAIN PARTICIPANTS 29
7.10 DIRECT ROLLOVER OF DISTRIBUTION 30
ARTICLE 8: WITHDRAWALS DURING EMPLOYMENT 33
8.01 GENERAL CONDITIONS FOR WITHDRAWALS 33
8.02 OPTIONAL WITHDRAWAL OF AFTER-TAX CONTRIBUTION AND COMPANY
CONTRIBUTION ACCOUNT 33
8.03 SPECIFIED HARDSHIP WITHDRAWAL 33
8.04 WITHDRAWAL AFTER AGE 59 1/2 34
8.05 WITHDRAWAL OF ROLLOVER ACCOUNT 34
8.06 WITHDRAWAL OF EMPLOYEE STOCK OWNERSHIP ACCOUNT 34
8.07 LOANS TO INTERESTED PARTIES 34
ARTICLE 9: ADMINISTRATION 37
9.01 FIDUCIARIES: 37
9.02 RESPONSIBILITIES OF THE PLAN SPONSOR 38
9.03 RESPONSIBILITIES OF THE TRUSTEE 38
9.04 RESPONSIBILITIES OF THE PLAN ADMINISTRATOR 38
9.05 DELEGATION OF DUTIES 39
9.06 COMMITTEE ACTION 40
9.07 INDIVIDUAL INDEMNIFICATION 40
9.08 EXPENSES 41
ARTICLE 10: GENERAL PROVISIONS 42
10.01 INALIENABILITY OF BENEFITS 42
10.02 NO RIGHT TO EMPLOYMENT 42
10.03 UNIFORM ADMINISTRATION 42
10.04 HEADINGS 42
10.05 CONSTRUCTION 42
10.06 UNCLAIMED DISTRIBUTIONS 42
10.07 DISTRIBUTIONS TO A LEGAL REPRESENTATIVE 42
10.08 EXPENSES 43
10.09 SOURCE OF PAYMENT 43
10.10 PLAN SUBJECT TO TAX APPROVAL 43
10.11 DISCONTINUANCE OF CONTRIBUTIONS 44
ARTICLE 11: SPECIAL PROVISIONS 45
11.01 AMENDMENTS TO THE PLAN 45
11.02 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS 45
11.03 TERMINATION 45
11.04 WITHDRAWAL OF AN EMPLOYER 46
11.05 PROCEDURE 46
ARTICLE 12: CLAIMS PROCEDURE 47
12.01 SUBMISSION OF CLAIMS 47
12.02 WRITTEN NOTICE OF DENIED CLAIM 47
12.03 REVIEW OF DECISION DENYING CLAIM 47
12.04 HEARING 47
12.05 WRITTEN DECISION OF COMMITTEE 47
ARTICLE 13: TOP-HEAVY PROVISIONS 49
13.01 OVERRIDING PROVISION 49
13.02 DEFINITIONS 49
13.03 MINIMUM CONTRIBUTION 52
13.04 EARNINGS 52
ARTICLE 14: EXERCISE OF SHAREHOLDERS'S RIGHTS 53
14.01 VOTING RIGHTS 53
14.02 RIGHTS OTHER THAN VOTING RIGHTS 53
BOWATER COMMUNICATION PAPERS INC. EMPLOYEES' SAVINGS PLAN
(As Amended and Restated Effective January 1, 1989)
ARTICLE 1:
DEFINITIONS
The following words and phrases as used herein shall, for the
purposes of the Plan and any subsequent amendment thereof, have the
following meanings, unless a different meaning is plainly required by the
context. Wherever applicable, the masculine pronoun shall include the
feminine pronoun, and the singular shall include the plural.
1.01 ACCOUNTS: The separate accounts maintained for each
Participant in each Investment Fund in which the Participant has a
balance, including, but not limited to, a Participant's After-Tax
Employee Contribution Account, Tax-Deferred Employee Contribution
Account, Company Contribution Account, Rollover Contribution Account, and
Payroll-Based Employee Stock Ownership Account, as determined under
Articles 3, 4, and 8.
1.02 ACTIVE PARTICIPANT: An eligible Employee who has on file
with the Employer an election to withhold part of his Earnings as a
periodic contribution to the Plan and who is currently having Earnings
withheld.
1.03 AFFILIATED COMPANY: Any company or organization directly
or indirectly controlled by, controlling, or under common control with
the Company which group includes Bowater Communication Papers Inc.,
within the meaning of Section 1563(a) of the Code, determined without
regard to Sections 1563(a) (4) and 1563(e)(3)(C) thereof, or is a member
of an affiliated service group within the meaning of Section 414(m) of
the Code. With respect to periods prior to July 1, 1988, Affiliated
Company includes any company which was an Affiliated Company of Bowater
Computer Forms Inc. or Star Forms, Inc.
1.04 AFTER-TAX EMPLOYEE CONTRIBUTION ACCOUNT: The value of that
portion of the Trust Fund which, with respect to any participant, is
attributable to his After-Tax Employee Contributions under Sections 3.02.
(This Account shall also include any contributions made on an after-tax
basis to the Bowater Prior Plan.)
1.05 BENEFICIARY: The person, estate or trust last designated
by a Participant, by written notice filed with the Plan Administrator, to
receive any benefits payable in the event of his death. In the absence
of an effective designation, or if no Beneficiary so designated survives
the Participant, the Beneficiary(ies) shall be member(s) of the first of
the following classes of successive preference beneficiaries in which one
or more members survive the Participant: the Participant's (a) widow or
widower; (b) children; (c) parents; (d) brothers and sisters;
(e) executor or administrator. Benefits shall be payable to multiple
Beneficiaries in equal shares.
Notwithstanding the above, if a Participant is married on the date
of his death, his Beneficiary shall be his surviving Spouse unless:
(a) the Participant has designated a Beneficiary other than his
Spouse, and
(b) the Participant's Spouse has consented in writing to such
other Beneficiary designation and the Spouse's consent acknowledges the
effect of such election and is witnessed by a representative of the Plan
Administrator or notarized by a notary public, or it is established to
the satisfaction of the Administrator that such consent cannot be
obtained because there is no Spouse or because the Spouse cannot be
located.
1.06 BOARD: The Board of Directors of the Company.
1.07 BOWATER OR BOWATER INCORPORATED: The parent company of
Bowater Communication Papers Inc. Whenever any power, right, privilege,
duty, or responsibility is reserved to Bowater (whether as Plan Sponsor,
or otherwise) under the terms of the Plan or the Trust, it may be
exercised by the Board of Directors of Bowater Incorporated (the "Bowater
Board") or by any individual(s), committee(s) or entity(ies) to whom the
Bowater Board has, in accordance with any procedure it has established,
expressly delegated or upon whom the Bowater Board has conferred the
authority to act.
1.08 BOWATER FORMS PRIOR PLAN: The Bowater Computer Forms Inc.
Employees' Savings Plan.
1.09 CODE: The Internal Revenue Code of 1986, as amended from
time to time. All references to any Section of the Code shall be deemed
to refer not only to such Section but also to any successor statutory
provision to such Section.
1.10 COMPANY: Bowater Communication Papers Inc. or any
successor by merger, purchase, or otherwise with respect to its
Employees. Whenever any power, right, privilege, duty, or responsibility
is reserved to the Company under the terms of the Plan or the Trust, it
may be exercised by the Board or by any individual(s), committee(s) or
entity(ies) to whom the Board has, in accordance with any procedure it
has established, expressly delegated or upon whom the Board has
conferred the authority to act.
1.11 COMPANY CONTRIBUTION ACCOUNT: The value of that portion of
the Trust Fund which, with respect to any Participant, is attributable to
any contributions made on his behalf by an Employer under Section 4.01.
(This Account shall also include any Company contributions made to the
Prior Plans.)
1.12 CURRENT OR ACCUMULATED PROFITS: The Employer's net profits
determined in accordance with generally accepted accounting principles
before provision for income taxes and extraordinary items. No Employer
Contribution shall be made in any Plan Year where there are not
sufficient current or accumulated net profits, unless the Board
affirmatively elects to make Contributions for such Plan Year despite the
absence of such net profits. If the current or accumulated net profits
of any Employer are not sufficient to permit the required Employer
Contributions and the Board does not elect to make such Contributions,
then the amount of the Employer Contribution which such Employer does not
make may be contributed by any other Employer to the extent of the
current or accumulated net profits of such Employer that remain after
contribution of the Employer Contributions required on behalf of
Participants employed by such other Employer. No reimbursement shall be
required as a result of such contribution.
1.13 DISABILITY: The status of being totally and permanently
disabled, as determined by the Plan Administrator in its sole discretion,
based on satisfactory evidence furnished to it by a licensed physician.
1.14 EARNINGS: Effective January 1,1994, The total cash
compensation paid to an Employee by the Employer, including overtime pay,
commissions, bonuses and any other extra cash remuneration, and including
severance pay received in periodic installments as approved by the Plan
Administrator in a uniform and nondiscriminatory manner, any contribution
to the Plan under Section 3.01 and any compensation excluded from taxable
income under Section 125 of the Code, but excluding any non-cash
remuneration, relocation allowances, imputed income, compensation
payment of which has been deferred to a future year or other special
remuneration.
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 Section 415(d)
of the Code, for the purpose of calculating a Plan Participant's accrued
benefit (including the right to any optional benefit provided under the
Plan) for any Plan Year commencing after December 31, 1993. However, the
accrued benefit determined in accordance with this provision shall not be
less than the accrued benefit determined on December 31, 1993 without
regard to this provision.
1.15 EFFECTIVE DATE: January 1, 1982 as to the Bowater Prior
Plan and January 1, 1984 as to the Star Prior Plan, or, in the case of an
Employer other than the Company, the date such employer becomes an
Employer. The effective date of this amended and restated Plan is
January 1, 1989.
1.16 EMPLOYEE: Effective January 1, 1992, any individual who is
hired to perform duties for the Employer, who is subject to its control,
and who receives a regular stated compensation, including a pay
arrangement or paid leave of absence, unless contractually agreed
otherwise, but excluding a pension, retainer or fee under contract.
The term "Employee" shall also include an individual who performs
services of a type historically performed by employees in the recipient's
business as a leased employee within the meaning of Section 414(n) of the
Code, for at least 1,500 hours for a period of at least 12 months.
1.17 EMPLOYEE STOCK OWNERSHIP ACCOUNT: The value of that
portion of the Trust Fund which with respect to any Participant, is
attributable to his Payroll-based Employee Stock Ownership Contributions
under the Bowater Prior Plan.
1.18 EMPLOYER: Bowater Communication Papers Inc. and its
divisions, including the Star Forms division and the Bowater Computer
Forms division, or any successor by merger, purchase or otherwise with
respect to its Employees, or any Affiliated Company which the Board shall
designate as an Employer for purposes of this Plan, upon such terms and
conditions as said Board shall determine, with the approval of the board
of directors of such Affiliated Company and of the Bowater Board.
1.19 EMPLOYMENT: The service as an Employee with the Employer.
1.20 ENROLLMENT DATE: The Effective Date and the first day of
each January, April, July, and October thereafter. In the case of any
Affiliated Company which is designated as an Employer, Enrollment Date
shall also mean the effective date of such designation.
1.21 ERISA: The Employee Retirement Income Security Act of
1974, as amended from time to time. All references to any Section of the
Act shall be deemed to refer not only to such Section but also to any
successor statutory provisions to such Section.
1.22 FIDUCIARY: A person or company who exercises discretionary
control over the Plan or assets, as defined in Section 3(21) of ERISA.
1.23 FORFEITURES: The excess of all amounts in Participants'
Accounts, accumulated with investment return, over the Vested Values,
upon distribution of such values pursuant to the Bowater Forms Prior
Plan.
1.24 HOUR OF SERVICE: Each hour, or part thereof, during which
an Employee is directly or indirectly paid, or entitled to payment, for
the performance of duties for an Employer or is paid for reasons other
than the performance of duties (such as vacation, holidays, sickness,
jury duty, or for which back pay is awarded or agreed to by the Employer
without regard to mitigation of damages).
1.25 INVESTMENT FUNDS: The funds, together with the investment
return thereon, as described under Section 5.01, into which a Participant
may direct that contributions be invested, pursuant to Article 5.
1.26 PARTICIPANT: An Active Participant, former Active
Participant, or Employee who still has contributions credited to his
Accounts.
1.27 PLAN: The Bowater Communication Papers Inc. Employees'
Savings Plan as set forth herein, and as it may, from time to time, be
amended.
1.28 PLAN ADMINISTRATOR: The Company or the individual(s) and/or
committee(s) appointed pursuant to procedures established by the Board to
administer the Plan.
1.29 PLAN SPONSOR. Plan Sponsor means Bowater Incorporated, a
corporation organized and existing under the laws of the State of
Delaware and which owns all of the common stock of the Company.
1.30 PLAN YEAR: The calendar year commencing January 1 and
ending December 31.
1.31 PRIOR PLANS: The Bowater Forms Prior Plan and the Star
Prior Plan.
1.32 RETIREMENT: Early retirement (on or after attainment of
age 55 with ten or more years of service) or normal retirement
(attainment of age 65), or postponed retirement (after age 65) under the
Bowater Communication Papers Inc. Employees' Retirement Plan, or, if an
Employer has its own qualified retirement plan, with respect to an
Employee who is a participant in such retirement plan, early, normal, or
postponed retirement under such Employer's retirement plan. A
Participant will be considered to have retired under the Plan if he
terminates Employment on or after attaining age 55.
1.33 ROLLOVER CONTRIBUTION ACCOUNT: The value of that portion
of the Trust Fund which, with respect to any Participant, is attributable
to his Rollover or Plan-to-Plan Transfer Contributions under Section 3.08
or under a Prior Plan or his Voluntary Deductible Employee Contributions
under the Star Prior Plan.
1.34 SEVERANCE FROM SERVICE DATE:
(a) The date on which the Employee quits, retires, is discharged
or dies; or
(b) The first anniversary of the first date of a period in which
the Employee remains absent from Employment with or without pay, for any
reason other than those specified in clause (a) of this Section 1.34,
such as vacation, holiday, sickness, disability, leave of absence, or
layoff.
In the case of an Employee who is absent from work for
maternity or paternity reasons beyond the first anniversary of the first
date of such absence, the Severance From Service Date shall be the second
anniversary of the first date of such absence. For purposes of this
paragraph, an absence from work for maternity or paternity reasons mean
an absence (1) by reason of the pregnancy of the Employee; (2) by reason
of the birth of a child of the Employee; (3) by reason of a placement of
a child with the employee in connection with the adoption of such child
by such employee; or (4) for purposes of caring for such child for a
period beginning immediately following such birth or placement.
1.35 SHARE OF BOWATER STOCK: A share of common stock of the
Company which is either tradeable on an established securities market or
which has voting power and dividend rights no less favorable than any
other class of common stock issued by such Company.
1.36 SPECIFIED HARDSHIP WITHDRAWAL: A withdrawal necessitated
by the need of the Participant for funds to cover costs related to
education, health or medical care, or housing requirements. For purposes
of clarification, a Specified Hardship Withdrawal shall be allowed only
for financial need arising out of expenses Incurred or assumed by a
Participant (a) for deductible medical expenses of a Participant or a
member of his family or dependent not covered by Insurance; (b) related
to the post-secondary school tuition for the next quarter, semester or
twelve (12) months of a Participant or a member of his family or
dependents; (c) relating to the acquisition of a primary residence of a
Participant; or (d) expenses to prevent eviction from, or foreclosure on
the mortgage on, the Participant's primary residence. The amount
withdrawn may not exceed the actual expense incurred by the Participant
due to such emergency (including reasonably anticipated state and federal
taxes and penalties payable with respect to the receipt of the amount
withdrawn) and shall not be reasonably available from other resources of
the Participant. Such resources Include all distributions (other than
Hardship) or loans available under this Plan, the ability to borrow from
banks, credit unions or other legitimate lenders, and the disposition of
personal assets which can be readily sold without need for replacement.
The Plan Administrator (or his delegate) shall determine whether
applications for such withdrawal satisfy the definition for Specified
Hardship Withdrawal.
1.37 SPOUSE: Unless otherwise defined, the person legally
married to the Participant at the time an action or event relevant for
Plan purposes occurs, or immediately prior to his death.
1.38 STAR PRIOR PLAN: The Star Forms, Inc. Savings and
Investment Plan.
1.39 TAX DEFERRED EMPLOYEE CONTRIBUTION ACCOUNT: The value of
that portion of the Trust Fund which, with respect to any Participant, is
attributable to his Tax-Deferred Employee Contributions under Section
3.01. (This Account shall also include any contributions made on a
before-tax basis under the provisions of Section 401(k) to the Prior
Plans.)
1.40 TRUSTEE: Fidelity Management Trust Company, as Trustee
under the Master Trust Agreement between Bowater Incorporated and
Fidelity Management Trust Company dated as of July 1, 1994, and, to the
extent not succeeded thereby, Wachovia Bank and Trust Company as Trustee
under the Bowater Incorporated Master Trust Agreement, as amended and
restated as of May 1, 1989, and their respective successors.
1.41 TRUST FUND: The aggregate funds held by the Trustee under
the Plan pursuant to the trust agreement between the Plan Sponsor and the
Trustee.
1.42 VALUATION DATE: The date or dates, as applicable,
specified by the Trustee on which the Trust fund is valued in accordance
with Article 6, which shall be at least one time in each twelve-month
period. As to Accounts maintained in any Investment Fund which is valued
daily, each business day may be deemed to be a Valuation Date. A date on
which all Investment Funds are valued is a "Comprehensive Valuation
Date".
1.43 VESTED VALUE: When used to refer to the interest of a
Participant in the Trust Fund on any date, the nonforfeitable portion
thereof at the time of determination, which, with respect to the Accounts
of Participants who are Active Participants on and after the Effective
Date of this Plan is 100% of such Accounts.
1.44 VESTING DATE: A Participant's date of Employment.
1.45 YEAR OF BREAK IN SERVICE: Any twelve (12) consecutive month
period, computed from Severance From Service Date, during which an
Employee does not complete one or more Hours of Service. A One Year
Break in Service shall occur on the last day of the first such twelve-
month period. Notwithstanding the above, an Employee shall be deemed to
have not incurred a One Year Break in Service if he is either on a leave
of absence in excess of twelve months authorized by his Employer and
returns to Employment upon the expiration of such leave, or on military
leave in excess of twelve months and returns to Employment with an
Employer within ninety days after his first eligibility for discharge, or
such longer period as may be prescribed by law.
1.46 YEARS OF SERVICE:
(a) For Employment on and after July 1, 1988, the aggregate period
of Employment consisting of Years of Service and parts thereof, with each
Year of Service consisting of twelve months and with a month consisting
of thirty days. Years of Service shall be computed beginning on the date
the Employee completes an Hour of Service upon commencing or recommencing
Employment and ending on his next following Severance From Service Date.
Years of Service shall include the period of time between an Employee's
Severance From Service Date and the date he next completes an Hour of
Service within twelve months from the date he last completed an Hour of
Service.
(b) For Employment prior to July 1, 1988, Years of Service shall
be equal to the years of service credited under the provisions of the
Prior Plans in existence as of June 30, 1988.
ARTICLE 2: ELIGIBILITY AND PARTICIPATION
2.01 ELIGIBILITY: An Employee who is an Active Participant in
either Prior Plan as of June 30, 1988 shall continue to be an Active
Participant as of July 1, 1988, provided that the Participant continues
to meet the requirements of Section 2.02 and has not ceased Active
Participation under Section 2.03. Subject to the provisions of Section
2.05, each other Employee shall be eligible to become a Participant on
any Enrollment Date following completion of the following requirements:
(a) He has completed one Year of Service; and
(b) He has attained age 21, and
(c) He is not a member of any other non-governmental tax
qualified defined contribution plan to which his Employer is making
contributions on his behalf;
(d) He is not a member of any collective bargaining unit for
which qualified plan benefits have been the subject of bargaining with
his Employer pursuant to a currently effective collective bargaining
agreement;
(e) He is not a "leased employee" within the meaning of that
term pursuant to Code Section 414(n); and
(f) He has not terminated Employment at the time he could
otherwise enter the Plan.
2.02 PARTICIPATION: Each eligible Employee shall become an
Active Participant as of any Enrollment Date, if on or before such date
and within the time period prescribed by the Plan Administrator the
Employee files with the Employer an enrollment form prescribed by the
Plan Administrator on which he designates the rate of his Participant
contributions, authorizes the Employer to make payroll deductions, and
makes investment elections as provided under the Plan. An eligible
Employee who does not file an enrollment form in accordance with the
preceding sentence shall become an Active Participant on the first
succeeding Enrollment Date after the date the Employee files such
enrollment form with the Employer. With respect to a Rollover
Contribution, an Employee, if not already a Participant, shall
automatically become a Participant at the time of such contribution.
2.03 CESSATION OF ACTIVE PARTICIPATION: An Employee shall cease
to be an Active Participant whenever any of the following occur:
(a) upon the voluntary suspension of his contributions, pursuant
to Section 3.07.
(b) upon the mandatory suspension of his contributions, pursuant
to Article 8;
(c) upon a Year of Break in Service by the Employee;
(d) upon any change in his status as an Employee which would
make him ineligible to become or remain a Participant under the terms of
Section 2.01, including a transfer to the payroll of an Affiliated
Company which is not an Employer, employment pursuant to a collective
bargaining agreement, or his eligibility to participate in another
defined contribution plan of the Employer or an Affiliated Company.
Participation (but not Active participation) shall not cease due to
(a), (b) or to temporary absence from employment. The Employee's
Participation shall continue until his Accounts are distributed in full
to him or his Beneficiary or until forfeited.
2.04 EFFECT OF REEMPLOYMENT ON PLAN ENTRY OR REENTRY: In the
event of reemployment after Severance From Service, an Employee may enter
or reenter the Plan pursuant to the following rules:
(a) If the Employee incurred five or more Years of Break in
Service, he may enter or reenter the Plan on any Enrollment Date after
meeting the requirements of Section 2.01 (by reference to Employment
subsequent to his Years of Break in Service);
(b) If the Employee was previously a Participant in the Plan and
(i) did not incur five Years of Break in Service, or (ii) had a vested
benefit at the time of his termination of Employment he may reenter the
Plan on the date of his reemployment;
(c) If the Employee did not incur a Year of Break in Service,
had satisfied the eligibility conditions of Section 2.01 but terminated
Employment prior to becoming a Participant, he may become a Participant
in the Plan on the later of (i) the date of his reemployment, or (ii) the
Enrollment Date on which he would have become a Participant had he not
incurred the termination of Employment;
(d) Any other Employee shall become a Participant in the Plan in
accordance with the provisions of Section 2.01.
2.05 PRIOR EMPLOYMENT WITH AN AFFILIATED COMPANY: Any person
who becomes an Employee and who was previously employed by an Affiliated
Company, or who previously performed service as a leased employee within
the meaning of Section 414(n) of the Code (if the Company was the
recipient of such services) shall have such service taken into account,
credited solely for purposes of determining eligibility to participate
and vesting under the Plan.
ARTICLE 3: PARTICIPANT CONTRIBUTIONS
3.01 TAX-DEFERRED EMPLOYEE CONTRIBUTIONS: Each Active
Participant may, subject to the terms and conditions of other Sections of
the Article, elect to make Tax-Deferred Employee Contributions to the
Plan. The rate of such Contribution shall be a whole percentage of the
Participant's Earnings. The maximum rate that may be elected (including
Contributions under Section 3.02) shall be 16%.
3.02 AFTER-TAX EMPLOYEE CONTRIBUTIONS: Each Active Participant
may elect to make After-Tax Employee Contributions to the Plan. The rate
of such Contribution shall be a whole percentage of the Participant's
Earnings. The maximum rate that may be elected (including Contributions
under Section 3.01) shall be 16%.
3.03 MODE OF PAYMENT: Employee Contributions shall be made by
means of payroll deductions for each payroll period, effective with the
first full payroll period which ends after the date on which an eligible
Employee becomes an Active Participant. Contributions shall be accrued by
the Employer from a Participant's earnings at the rate designated by the
Participant, paid to the Trustee promptly, and credited to the applicable
Accounts as of the next Valuation Date.
3.04 LIMITATIONS ON TAX-DEFERRED CONTRIBUTIONS: Tax-Deferred
Employee Contributions shall be limited by the Plan Administrator to
satisfy the requirements of subsections (a) and (b) of this Section.
(a) The amount of Tax-Deferred ("Elective Deferrals") for a
Participant for his taxable year shall be limited to $7,313 (or such
other applicable amount pursuant to the provisions of Sections 402(g)(4),
(5), and (8) of the Code).
To the extent the Participant has made Elective Deferrals to
the Plan in excess of the amount set forth in the preceding paragraph
("Excess Deferrals"), such Excess Deferrals shall be distributed to him
no later than the April 15 following the end of the taxable year during
which such Elective Deferrals are made.
If, for a taxable year, a Participant makes Elective Deferrals
to this Plan and to any other plan or arrangement, he may allocate the
amount of any Excess Deferrals for such taxable year among such plans.
No later than the first day of March following the close of the taxable
year during which the Excess Deferrals are made, the Participant shall
notify the Plan Administrator in writing of the amount of his Excess
Deferrals allocated to this Plan. Such amount shall then be distributed
(including investment income thereon) to the Participant no later than
the following April 15.
(b) All Employees who are eligible for Participation under
Article 2 shall be divided into two groups: Group 1 shall include the
eligible Employees who are "highly compensated employees" (as defined in
Section 414(q) of the Code); Group 2 shall include the remaining eligible
Employees. Actual deferral percentages (within the meaning of Section
401(k)(3)(b) of the Code) shall be determined separately for Groups 1 and
2 by averaging the ratios (calculated separately for each Employee in
each Group) of (1) the Tax-Deferred Employee Contributions and Employer
Contributions during the Plan Year, to (ii) the Employee's Earnings for
the Plan Year.
The actual deferral percentage for Group 1 shall not exceed the
greater of (i) or (ii) as follows:
(i) One and one-fourth (1.25) times the actual deferral
percentage for Group 2;
(ii) The actual deferral percentage for Group 2 plus a two
percent (2%), or two (2) times the actual deferral percentage for Group
2, whichever is less.
For purposes of this sub-section (b), the actual deferral
percentage taken into account for any Employee in Group 1 who is a
participant in two or more cash or deferred arrangements of the Employer
or an Affiliated Company shall include the Employee's Elective Deferrals
and Earnings under all such arrangements.
The Plan Administrator may, if necessary, reduce eligible
Employees' elections of Tax-Deferred Employee Contributions for Group 1,
to satisfy the conditions of this Section. Such limitations and
restrictions may be imposed on all or only a class of eligible Employees
and may be revoked or modified by the Administrator at any time prior to
the end of the Plan Year (or such later date that may be permitted by
regulations).
3.05 LIMITATIONS ON AFTER-TAX CONTRIBUTIONS: After-Tax Employee
Contributions shall be limited by the Plan Administrator to satisfy the
requirements of this Section.
Contribution Percentages (as defined in Section 401(m)(3) of the
Code) shall be determined separately for Groups 1 and 2 (as defined in
Section 3.04) by averaging the ratios (calculated separately for each
Employee in each Group) of (i) the After-Tax Employee Contributions
during the Plan Year, to (ii) the Employee's Earnings for the Plan Year.
The Contribution Percentage for Group 1 shall not exceed the greater
of (i) or (ii) as follows:
(i) One and one-fourth (1.25) times the actual Contribution
Percentage for Group 2;
(ii) The Contribution Percentage for Group 2 plus two
percent (2%), or two (2) times the Contribution Percentage for Group 2,
whichever is less.
If two or more plans of the Employer to which employer contributes,
employee contributions, or Elective Deferrals are made are treated as one
plan for purposes of Section 410(b) of the Code, such plans shall be
treated as one plan. If an Employee in Group 1 participates in two or
more plans of the Employer to which such contributions are made, all such
contributions shall be aggregated ("Aggregate Contributions")
For purposes of computing the Contribution Percentages, the Employer
may elect to take into account Elective Deferrals allocated to a
Participant's account under this Plan or any other plan it sponsors.
The Plan shall be treated as satisfying the requirements of Sections
3.04(b) and 3.05 hereof for any Plan Year, if before the close of the
following Plan Year; (i) the amount of any Excess Deferrals under Section
3.04 or excess Contributions or excess Aggregate Contributions under this
Section (and any income allocable to such deferrals or contributions) is
distributed to the Participant; (ii) in the case of Excess Deferrals, to
the extent permitted by regulations issued by the Secretary of the
Treasury an Employee elects to treat such Excess Deferral as distributed
and recontributed by the Employee to the Plan; or (iii) in the case of
excess Contributions or excess Aggregate Contributions, to the extent
such contributions are forfeitable, are forfeited.
3.06 CHANGE IN AMOUNT OF CONTRIBUTIONS: Subject to the
provisions of Sections 3.04 or 3.05 as applicable, a Participant may
elect to change the rate of his Tax Deferred Employee Contributions or
his After-Tax Employee Contributions as of the first day of any month by
giving prior written notice to the Employer on a form provided for such
purpose and within the time period prescribed by the Plan Administrator.
Changes will be effective with the first full payroll period which
begins on or after the first day of the month as of which the Participant
had elected to change his Contributions.
3.07 VOLUNTARY SUSPENSION OF PARTICIPANT CONTRIBUTIONS: A
Participant may suspend his After-Tax Employee Contributions as of the
last day of any month by giving prior written notice to the Employer
within the time period prescribed by the Plan Administrator.
A Participant may suspend his Tax-Deferred Employee Contributions as
of the last day of any month by giving prior written notice to the
Employer within the time period prescribed by the Plan Administrator.
The Participant may resume his Contributions as of the first day of
any month which is more than three (3) months after the date the
suspension commenced by giving prior written notice to the Employer
within the time period prescribed by the Plan Administrator.
Written notice of suspension or resumption of Contributions shall be
on a form provided by the Plan Administrator for such purpose.
3.08 ROLLOVER CONTRIBUTIONS: An Employee, whether or not a
Participant, may request the Administrator to direct the Trustee to
accept any of the following amounts from or on behalf of the Employee and
place them in a Rollover Contribution Account for the Employee:
(a) amounts transferred to this Plan directly from another trust
or annuity contract maintained as part of a plan of the Employer or an
Affiliated Company which is qualified under Section 401(a) of the Code;
(b) amounts which (i) constitute or form a part of a qualifying
rollover distribution within the meaning of Section 402(a)(5) of the Code
which have been received by the Employee from another trust or annuity
contract maintained as part of a plan qualified under Section 401(a) of
the Code (other than one forming part of a plan under which the Employee
was one described in Section 401(c)(1) of the Code at the time the
contributions were made on his behalf), (ii) are eligible for tax-free
rollover treatment, and (iii) are transferred to this Plan by the
Employee within 60 days following his receipt; or
(c) amounts which have been deposited and held in a conduit
Individual Retirement Account (as defined in Section 408 of the Code)
consisting solely of assets and the income thereon which were (i)
previously distributed to the Employee from another trust or annuity
contract maintained as part of a plan qualified under Section 401(a) of
the Code (other than one forming part of a plan under which the Employee
was described in Section 401(c)(1) of the Code at the time the
contributions were made on his behalf) as part of a qualifying rollover
distribution as defined in Section 401(a)(5) of the Code and which were
deposited in the Individual Retirement Account within 60 days of their
receipt, and (ii) are transferred directly to this Plan from the conduit
Individual Retirement Account or are transferred to this Plan within 60
days of their distribution to the Employee from the conduit Individual
Retirement Account.
The Employee shall make application to the Administrator in writing,
submitting whatever information is deemed necessary and sufficient by the
Administrator to establish compliance with the requirements of this
subsection 3.08. Amounts accepted by the Administrator shall be placed
in a Rollover Contribution Account established for the Employee and shall
become part of the Trust Fund. Any amounts in the Employee's Rollover
Contribution Account shall be one hundred percent (100%) vested at all
times. The Employee shall be able to direct the investment of this
Account in accordance with the provisions of Article 5. An Employee's
Rollover Contribution Account shall be subject to the same terms and
conditions as are applicable to a Tax-Deferred Employee Contribution
Account. Any amounts transferred into this Plan under this Section shall
be by check. No securities may be contributed.
3.09 EMPLOYMENT WITH AFFILIATED COMPANY: A Participant may not
contribute to the Plan while he is employed by an Affiliated Company
which is not an Employer, unless and except to the extent that he
continues to receive Earnings from an Employer. A Participant who
receives Earnings from an Employer and compensation from such an
Affiliated Company may elect to contribute to the Plan, by means of
payroll deductions for each payroll period, as if his Earnings from the
Employer included his compensation from the Affiliated Company. However,
a Participant's prior and concurrent service with an Affiliated Company
which is not an Employer shall be counted for Years of Service to the
extent such credit would have been given under Sections 1.45 and 1.46 as
if such Affiliated Company had been an Employer. For this purpose, the
fact that the Participant has made no contributions under the Plan shall
be disregarded.
ARTICLE 4: EMPLOYER CONTRIBUTIONS
4.01 CONTRIBUTION SCHEDULE: With respect to each Active
Participant in its Employment the Employer shall contribute to the Plan
an amount determined as follows:
Participant's Employer's
Contribution Contribution
First $250 100%
Next $600 50%
Next $2,400 25%
Excess 0%
This Schedule shall be applied for each Plan Year, regardless of
Participant or Employer Contributions in Prior Plan Years; provided,
however, for the period beginning July 1, 1988 and ending December 31,
1988, this Schedule shall apply to Participant Contributions in such
period, regardless of Participant or Employer Contributions in the
previous six months.
Contributions by the Employer with respect to Active Participants
shall be paid to the Trustee promptly and credited to each Participant's
Company Contribution Account as of the next Valuation Date designated by
the Plan Administrator for that purpose, but no later than the next
Comprehensive Valuation Date.
4.02 MODE OF PAYMENT: Employer contributions under Section 4.01
shall be made in cash.
4.03 FORFEITURES: The amount of any Forfeitures under Section
10.06 shall be applied to reduce future Employer contributions under the
Plan as soon as practicable after the event giving rise to the forfeiture
shall have occurred.
4.04 RETURN OF CERTAIN CONTRIBUTIONS TO EMPLOYER: The following
Employer contributions may be returned to an Employer:
(a) Any contribution made by an Employer under a mistake of fact
may be returned to the Employer within one year payment;
(b) Any contribution which is disallowed as a deduction under
Section 404 of the Code may be returned to an Employer within one year
after disallowance.
The amount which may be returned to an Employer shall not exceed the
amount of the Employer's contribution reduced by any losses attributable
to the contribution between the date of contribution and the Valuation
Date immediately preceding the date of withdrawal. No contribution or
portion of a contribution will be returned to an Employer if the return
of such amount would cause the value of an Employer Contribution Account
to be less than what its value would have been had the contribution not
been made.
4.05 STATUTORY LIMITATION ON ADDITIONS: Notwithstanding any
other provisions of the Plan, for each Plan Year beginning on and after
January 1, 1987, "the annual addition" to a Participant's Accounts shall
not exceed the lesser of (a) and (b) below:
(a) The Maximum Permissible Dollar Amount; and
(b) 25% of the Employee's compensation for the Plan Year.
For purposes of applying the above limits, the following conditions
and definitions shall apply:
(i) The term "annual additions" shall mean the sum of:
1. Employer Contributions and forfeitures allocated to
the Participant's Accounts under Sections 4.01 and 5.01;
2. Tax-Deferred Employee Contributions and After-Tax
Employee Contributions allocated to the Participant's Accounts under
Section 3.01 and 3.02;
(ii) The initial Maximum Permissible Dollar Amount shall be
$30,000, and the initial Maximum Permissible Benefit shall be $90,000.
The limitations shall be adjusted automatically in accordance with
regulations issued or to be issued by the Secretary of the Treasury as
the corresponding limitation in Section 415(c)(1)(A) and Section
415(b)(1)(A) of the Code, respectively, are adjusted for the cost of
living in accordance with Section 415(d) of the Code.
(iii) For purposes of this Section, the term "compensation"
shall mean the amount paid to the Employee by the Employer during the
Plan Year, excluding Tax-Deferred Employee Contributions under Section
3.01.
(iv) The limitations of this Section with respect to any
Participant who at any time has been a participant in any other defined
contribution plan maintained by the Company or an Affiliated Company
shall apply as if the total contributions made under all such defined
contribution plans in which the Participant has been a participant were
made to one plan.
If the above limitations would be exceeded in any Plan Year,
the Plan Administrator shall take the following action in any order at
such times as required and to the extent necessary to prevent the
limitations from being exceeded.
(i) Discontinue or reduce the Participant's Tax-Deferred
Employee Contributions;
(ii) Discontinue or reduce the Participant's After-Tax
Employee Contributions for the Plan Year.
(iii) Instruct the Trustee to return all or a portion of the
Employee's After-Tax Employee Contributions made during the Plan Year;
(iv) Instruct the Trustee to return all or a portion of the
Employee's Tax-Deferred Employee Contributions made during the Plan Year;
(v) Instruct the Employer to reduce or eliminate its
Employer Contributions to the Participant's Accounts for the remainder of
the Plan Year;
(vi) Instruct the Trustee to return to the Employer all or
a portion of the Employer Contributions made to the participant's
Accounts for the Plan Year;
(vii) Apply any amounts in excess of such limitations
("excess amounts") for a Participant to reduce Employer contributions for
the next Plan Year (and succeeding Plan Years, as necessary) for that
Participant, if that Participant is covered by the Plan as of the end of
the Plan Year.
If that Participant is not covered by the Plan as of the end of the
Plan Year, the Committee shall hold such excess amounts unallocated in a
suspense account for the Plan Year to be allocated and reallocated in the
next Plan year to all of the remaining participants in the Plan. Such
allocation or reallocation shall not result in the limitations of this
Section 4.05 being exceeded for any Participant for the Plan Year.
Any excess amounts not allocated to Participants in the preceding
paragraph shall be used to reduce Employer contributions for the next
Plan Year (and succeeding Plan Years, as necessary) for all of the
Participants in the Plan.
For purposes of this subsection, excess amounts may not be
distributed to Participants or former Participants.
The above actions shall not be considered a suspension of
Participant Contributions as provided in Section 3.07.
Notwithstanding the foregoing, the provisions of Section 415 of the
Code, as amended by the Tax Reform Act of 1986, are hereby incorporated
by reference for use as a guide to the interpretation of the foregoing
provisions.
4.06 COMBINED PLANS LIMITATION: In any case in which a
Participant in the Plan is also a participant in any defined benefit
pension plan maintained by the Employer, the allocations set forth in
this Plan shall be additionally limited so that the sum of the "defined
benefit fraction" and the "defined contribution fraction" shall not
exceed 1.0 for any Plan Year.
The term "defined contribution fraction" for a Plan Year shall mean
a fraction, the numerator of which is the sum of annual additions to the
Participant's Accounts for all Plan years as of the end of the Plan Year
and the denominator of which is the lesser of 125% of the Maximum
Permissible Dollar Amount for the Plan Year and all prior Years of
Services or 140% of 25% of the Participants compensation for that year
and all prior Years of Service.
The term "defined benefit fraction" for a Plan Year shall mean a
fraction, the numerator of which is the projected annual benefit for the
Participant under all qualified retirement plans of the Employer and the
denominator of which is the lesser of 125% of the Maximum Permissible
Benefit under the Retirement Plans for the Plan Year or 140% of the
Participant's average compensation for the three highest paid years.
Such fraction shall be determined as of the end of the Plan Year.
The Participant's projected annual benefit shall be determined under
such retirement plans assuming that his earnings continue to normal
retirement date at the same level as at the end of the Plan Year and
assuming that his service continues to accrue to his Normal Retirement
date without a break in service prior to his normal retirement date. The
terms "earnings", "service", "normal retirement date", and "break in
service" shall have the same meaning as defined in such retirement plans.
ARTICLE 5: INVESTMENT OPTIONS
5.01 INVESTMENT OF PARTICIPANT AND EMPLOYER CONTRIBUTIONS:
Participant and Employer Contributions shall be invested by the Trustee,
either as directed by the Provisions of the Plan or as directed by the
Participant (or, where applicable, the Participant's Beneficiary or an
Alternate Payee designated pursuant to a Qualified Domestic Relations
Order), in one or more Investment Funds which shall include the
following:
THE PLAN SPONSOR STOCK FUND: A fund which invests primarily in
shares of Bowater Incorporated common stock. However, a small percentage
of the Fund is invested in money market instruments to facilitate daily
cash transactions. Cash dividends received on shares of Bowater
Incorporated stock held by this Fund will be automatically reinvested in
the Fund. Accounts in this Fund shall segregate, separately account for
and respectively consist of shares of Bowater Incorporated stock
attributable to Employer Contributions and Participant Contributions.
All participant Contributions initially invested directly in this Fund
pursuant to Section 5.02 shall be treated as if invested at 95% of market
value, with the Employer making the necessary contributions to effect
allocations at full fair market value.
Subject to the provisions of other Sections of the Article 5, any
Employee Stock Ownership Accounts shall be invested in this Fund.
ADDITIONAL INVESTMENT FUNDS: There shall be established by the
Trustee at the direction of the Plan Sponsor or its designee such further
additional Investment Funds as shall be deemed appropriate, including
Investment Funds appropriate for purposes of meeting the requirements of
Section 404(c) of ERISA and the regulations thereunder.
TEMPORARY INVESTMENT: Pending investment and reinvestment, the
Trustee may invest temporarily all or any part of the Investment
Funds and such other Investment Funds as may be established by the
Trustee at the direction of the Plan Sponsor or its designee pursuant to
the provisions of the Plan in short and medium term securities including
but not limited to commercial paper, notes of finance companies or in
obligations of the U.S. Government or any instrumentality or agency
thereof. The Plan Sponsor or its designee may from time to time specify
additional or different investment vehicles for the temporary investment
of funds by the Trustee, or may direct the Trustee in the temporary
investment of funds. The Trustee may invest all or any part of any
Investment Fund directly in the securities and obligations authorized for
the respective Investment Fund or through the medium of any common,
collective or commingled trust fund which is invested principally in
securities and obligations authorized for the respective Investment Fund.
5.02 INVESTMENT ELECTIONS BY PARTICIPANTS: Each Participant
must elect by "Appropriate Notice" (as hereinafter defined) to have all
of his Contributions and his Employer Contributions invested in any of
the available Investment Funds, or among such Funds, with the investment
in each Fund being a whole number percentage of such Contributions and
the sum of such percentages equal to 100%. ("Appropriate Notice" means,
for these purposes, written, telephonic or other electronic communication
directed to the Plan Administrator, or as the Plan Administrator
specifies in rules or procedures uniformly applicable to all similarly
situated Participants.) A Tax-Deferred Employee Contribution Account, an
After-Tax Employee Contribution Account, a Company Contribution Account,
and when required, a Rollover Contribution Account shall be established
for the Participant in each Investment Fund in which contributions are
invested on his behalf. Contributions and earnings thereon as to which no
current, valid investment direction exists may be invested as the
Trustee, in its discretion, shall deem appropriate; provided, however,
that in the event no trustee has agreed to undertake such investment
responsibility, such contributions and earnings shall be temporarily
invested in one or more of the investment vehicles authorized in the
preceding paragraph for temporary investment of funds, until a valid
investment direction is obtained.
5.03 CHANGES IN CURRENT INVESTMENT ELECTIONS: A Participant may,
by giving prior "Appropriate Notice", change his investment election with
respect to contributions received thereafter. Changes in investment
elections must be expressed as revised whole number percentages of
Contributions, totaling 100%.
5.04 TRANSFERS OF ACCOUNTS: A Participant may, by giving prior
"Appropriate Notice" (as defined in Section 5.02) elect to transfer all,
or part (specified as a dollar amount or a percentage of the existing
balance) of his Account in any Investment Fund to another Investment
Fund. Such transfer shall be effective as soon thereafter as practicable
(which, with respect to Funds which are valued daily and accessible by
telephone or other electronic investment direction, can be the same day
as directions are transmitted, if received before 4:00 P.M. local time,
or the next business day thereafter). No transfers pursuant to this
Section 5.04 shall be permitted at any time with respect to the
Participant's Employee Stock Ownership Account in the Plan Sponsor Stock
Fund.
The Administrator may authorize changes in investment options on
dates other than an Enrollment date as special conditions may warrant.
The Administrator may establish rules and procedures as the circumstances
require to allow such changes in investment options, including a special
valuation of Participants' Accounts.
ARTICLE 6: VALUATION OF PARTICIPANTS' ACCOUNTS
6.01 ACCOUNTS: Each Participant shall have established for him
separate accounts which shall reflect all amounts contributed by the
Participant and by the Employer on his behalf and the investment
accretions thereon.
6.02 VALUATION OF ACCOUNTS: As of each Valuation Date, the
Accounts of each Participant shall be adjusted separately for each Fund
to reflect any appreciation or depreciation in the fair market value of
the Funds and income earned by the Funds. The fair market value of the
Funds shall be determined by the Trustee and communicated to the
Administrator in writing. It shall represent the fair market value of
all securities or other property held for the respective Investment
Funds, plus cash and accrued earnings, less accrued expenses and proper
charges against the Funds as of the Valuation Date. The Plan Sponsor
Stock Fund shall be represented by Shares of Bowater Stock plus the value
of any fractional share which shall be held in cash or may be unitized
and expressed as a cash value, as the Plan Administrator and Trustee
shall agree. The Trustee's determination of value shall be final and
conclusive for all purposes of this Plan. A Participant's Accounts shall
be adjusted in proportion to the balance in each Participant's Account on
the last Valuation Date, less distributions.
When determining the value of Participant's Accounts, any deposits
due which have not been deposited to the Fund on behalf of the
Participant shall be added to his Accounts. Similarly, adjustment of
Accounts for appreciation or depreciation of the fund shall be deemed to
have been made as of the Valuation Date on which the adjustment relates,
notwithstanding the fact that they are actually made as of a later date.
Any cash dividends received by the Trustee with respect to Shares of
Plan Sponsor Stock held by the Plan shall be invested in additional
Shares of Plan Sponsor Stock. Any Shares of Plan Sponsor Stock purchased
from cash dividends plus any other Shares of Plan Sponsor Stock received
as a result of a stock split or a stock dividend shall be allocated to
the Accounts of Participants in the Plan Sponsor Stock Fund, in
proportion to the Account balances as of the appropriate record date.
6.03 AMOUNT OF PARTICIPANT'S ACCOUNTS: The amount of a
Participant's Accounts for purposes of distribution shall be equal to:
(a) The value of the Participant's Accounts as of the most
recent Comprehensive Valuation date, plus
(b) The Participant and Employer Contributions made since the
most recent Valuation Date, plus
(c) Principal and interest payments made by the Participant on
any outstanding loan under Section 8.7 since the most recent
Comprehensive Valuation Date, minus
(d) Any distribution since the most recent Comprehensive
Valuation Date.
Notwithstanding the above, the Administrator may in its discretion
use the value of the Participant's Accounts as of a special valuation
date to determine the amount of a Participant's Accounts for purposes of
distribution in lieu of the amount determined above. The Administrator
may delay any distribution under the Plan until the valuation as of such
special date is completed.
6.04 STATEMENT OF PARTICIPANT ACCOUNTS: As soon as practicable
after the completion of each calendar quarter, an individual statement
will be issued to each Participant showing the value of his Accounts.
6.05 TIMING OF CREDITS AND DEDUCTIONS: The credits to or
deductions from a Participant's Account(s) shall be deemed to have been
made on the date to which they relate, although they may actually be
determined at another date. Notwithstanding the foregoing, to the extent
utilization of Investment Funds which are valued daily renders it
feasible to do so, transactions will be effected by the Fund manager on
the date money or investment directions are received prior to 4:00 P.M.
local time, otherwise on the next business day. The Accounts of
Participants will be debited or credited, as appropriate, no later than
the date on which transactions are effected.
ARTICLE 7: BENEFITS UPON RETIREMENT, DEATH, DISABILITY,
OR TERMINATION
7.01 RETIREMENT: Upon Retirement, the Vested Value shall be the
Value of the Participant's Accounts. The Vested Value shall be paid to
him in full under any of the methods selected by the Participant under
Sections 7.06 and 7.07, subject, if applicable, to the provisions of
Section 7.09.
7.02 DEATH: Upon the death a Participant before or after
Retirement, the Vested Value shall be the value of his Accounts, to the
extent not yet distributed. The Vested Value shall be paid to his
Beneficiary in full, under Sections 7.06, 7.07 and 7.08, subject, if
applicable, to the provisions of Section 7.09.
7.03 DISABILITY: Upon termination of employment of a
Participant by reason of Disability before Retirement, the Vested Value
shall be the value of his Accounts. The Vested Value shall be paid to
him or his Beneficiary in full under Sections 7.06 and 7.07, subject, if
applicable, to the provisions of Section 7.09, or, if applicable pursuant
to Section 10.07.
7.04 OTHER TERMINATION OF EMPLOYMENT AND VESTING: Upon
termination of Employment of a Participant other than by Retirement,
death, or Disability, and other than by transfer to an Affiliated Company
which is not an Employer the Vested Value of his Accounts shall be paid
to him in accordance with Sections 7.06 and 7.07, provided, however, that
installment payments pursuant to Section 7.06(b) may not be elected by a
terminated Participant prior to attainment of age 59 1/2.
The Vested Value of a Participant's Accounts shall include the
entire value of his Accounts arising pursuant to his own contributions,
Company Contributions and his Employee Stock Ownership Contributions.
A Participant who transfers to an Affiliated Company that is not an
Employer and subsequently terminates his Employment with that Company
shall be deemed to have terminated his Employment under this Section
unless he transfers without intervening employment to an Employer or
another Affiliated Company that is not an Employer.
7.05 TRANSFER OF EMPLOYMENT: If a Participant transfers to an
employment status with the Employer or an Affiliated Company such that he
no longer meets the definition of employee under this plan, he shall be
given the following options:
(a) To elect a Plan to Plan Transfer of the Vested Value of his
Accounts, to the Plan of the Affiliated Company.
(b) To defer such transfer or the receipt of any distribution
until a later date. His Accounts will remain in the Plan until
Retirement, death, Disability, or termination of Employment, or, until
eligible for withdrawal under Article 8.
7.06 ELECTION OF BENEFITS: On or before a Participant's
Severance From Service Date he shall notify the Administrator of his
election that benefits due to him upon termination of Employment be paid
or made available in accordance with one of the following methods,
subject, if applicable, to the provisions of Section 7.09.
(a) by a lump sum payment in cash;
(b) in annual installments over a period not to exceed ten
years, provided such period does not exceed the greater of the life
expectancy of the Participant or the joint and last survivor life
expectancy of the Participant and his Beneficiary. The amount of each
installment will be determined by dividing the Participant's Vested Value
by the number of annual installments which remain to be made at the time
a particular installment is to be paid.
(c) in kind, equal to the full Shares of Plan Sponsor Stock plus
the cash equivalent of the fair market values of any fractional Share of
Plan Sponsor Stock in the Plan Sponsor Stock Fund, together with a lump
sum cash payment for the Participant's interests in the other Investment
Funds. The Trustee, in the case of a fractional share, shall be deemed
to have purchased such fractional share from the Participant concerned at
a price equal to the cash payment to be made to the Participant. Cash
for the purchase of fractional shares may be taken from dividend receipts
or other cash in the Trust.
A Participant may change his election of benefits by filing a new
election in writing at any time prior to his benefit commencement date
(with respect to (a) and (b), above,) or at any time prior to the
purchase of the annuity contract with which payments pursuant to Section
7.09 are to be funded.
A Participant who has previously elected to receive benefits under
Subsection (b) may subsequently elect in writing to the Plan
Administrator for a lump sum distribution in cash. Under such a
distribution the Administrator shall permit the Participant to withdraw
the total Vested Value of the Participant's Accounts, determined as of
the Valuation Date next following the Participant's application for
withdrawal.
7.07 METHOD OF PAYMENT: Benefits shall be paid or made available
under the Plan upon the direction of the Administrator as soon as
practicable after termination of Employment occurs.
Unless the Participant elects otherwise, distribution of benefits
will begin no later than sixty days after the end of the Plan Year in
which the latest of the following events occurs:
(i) The Participant's attainment of age 65;
(ii) The tenth anniversary of the year in which the
Participant commenced participation in the Plan; or
(iii) The Participant's termination of Employment with the
Employer or an Affiliated Company.
Effective January 1, 1991, notwithstanding any other provisions of
the Plan,
(a) The entire interest of an Employee (i) will be
distributed to such Participant not later than the "required beginning
date" (as defined under subsection (d)); or (ii) will be distributed
under Section 7.06(b) beginning not later than the required beginning
date, in accordance with regulations prescribed by the Secretary of the
Treasury.
(b) If distributions have begun under (a)(ii), upon the
death of an Employee before his entire interest has been distributed,
the remaining portion will be distributed at least as rapidly as under
the method being used under (a)(ii) as of the date of his death.
(c) If distributions have not begun upon the death of a
Participant, if no election has been made by the Beneficiary pursuant to
Section 7.08, the entire interest of the Participant will be distributed
in accordance with Section 7.06 at the end of the calendar year
containing the fifth anniversary of the Participant's death.
(d) For purposes of this Section, the term "required
beginning date" means April 1 of the calendar year following the calendar
year in which the Employee attains age 70 1/2, or such other date as may
be prescribed by applicable law or regulations.
7.08 PROOF OF DEATH AND RIGHT OF BENEFICIARY: In the event of
the death of a Participant who has begun to receive benefits in annual
installments under the provisions of subsection (b) of Section 7.06, his
Beneficiary will receive the undistributed value of his Accounts in
annual installments on the same basis as the Participant had elected.
Alternatively, his Beneficiary may receive the undistributed value of his
Accounts in a lump sum of cash by an election in writing filed with the
Plan Administration Administrator within 90 days of the Participant's
death. The Beneficiary of a deceased Participant other than noted above
shall elect to receive the undistributed value of his Accounts under one
of the methods in Section 7.06 by an election in writing filed with the
Plan Administrator within 180 days of the Participant's death, except
that the maximum period in Section 7.06(b)shall be five years. If the
Beneficiary does not elect a distribution within 180 days, the Plan
Administrator will distribute the Account in accordance with Section
7.07(c).
The Administrator may require and rely upon such proof of death and
such evidence of the right of any Beneficiary to receive benefits of a
deceased Participant as the Administrator may deem proper, and its
determination of death and of the right of such Beneficiary to receive
payments shall be conclusive.
7.09 AUTOMATIC FORMS OF DISTRIBUTION FOR CERTAIN PARTICIPANTS:
The provisions of this Section shall apply to Participants in the Star
Prior Plan as of June 30, 1988 and shall supersede any conflicting
provisions in the Plan, if the Participant's Vested Value exceeds $3,500.
The Automatic Form of Distribution shall be:
(i) A qualified joint survivor annuity for a Participant
who has a Spouse at the time benefits are payable, unless benefits are
payable due to the death of the Participant before Retirement;
(ii) A life annuity with installment refund for a Participant
who does not have a Spouse at the time benefits are
payable;
(iii) A life annuity with installment refund for a
Participant who has a Spouse, when benefits are
payable due to the death of the Participant before
Retirement.
The Optional Forms of Distribution shall be:
(i) A single life annuity to the Participant;
(ii) A joint and contingent life annuity payable during the
lifetime of the Participant and continuing after his death at 100%, 66
2/3%, or 50% (whichever had been elected by the Participant) to his
designated contingent annuitant as long as the contingent annuitant
lives.
(iii) The options outlined under Section 7.06.
The present value of the amount to be paid to the Participant under
any option shall be at least 50% of the present value of the amounts to
be paid to the Participant and Contingent Annuitant or Beneficiary. The
entire interest of the Participant shall be distributed (1) over the life
of the Participant or the lives of the Participant and his Spouse or (2)
over a period not extending beyond the complete life expectancy of the
Participant or the joint and survivor life expectancy of the Participant
and his Spouse. Any form of distribution for a death benefit shall be
paid (1) over the life of the Participant's Spouse or (2) over a period
not extending beyond the life expectancy of the Spouse.
The Administrator shall furnish in writing to the Participant the
terms and conditions of the Automatic Forms at the time of initial
Participation under Article 2, together with a general explanation of the
effects of revoking or continuing this Form. The Participant shall have
an election period of at least 90 days prior to distribution within which
to make a written election.
A Participant may revoke the Automatic Form of Distribution within
the 90 day period preceding his Retirement Date. A married Participant's
election to revoke the Automatic Form shall be effective only if it is
accompanied by the written consent of the Participant's Spouse. Such
written consent ("Spousal Consent") shall be irrevocable, name the
individual, if any (other than the Spouse) who is to receive benefits
under the Plan, acknowledge the effect of the election, and be witnessed
by a representative of the Plan or witnessed and notarized by a Notary
Public. Such written consent shall not be necessary if: (1) there is no
Spouse, (2) the written consent cannot be obtained because the Spouse
cannot be located, or (3) there exist other circumstances, under rules
established by the Secretary of the Treasury, that relieve a Participant
from the requirement of obtaining the consent of his Spouse.
7.10 DIRECT ROLLOVER OF DISTRIBUTION: Any "Eligible Rollover
Distribution" under this Article may, at the Participant's election, and
subject to such uniform and nondiscriminatory conditions as the Plan
Administrator may require, be transferred to an "Eligible Retirement
Plan", subject to the provisions of Section 402 of the Code and the
regulations thereunder and as hereinafter provided.
(a) The Plan Administrator shall advise any "Distributee"
entitled to receive an "Eligible Rollover Distribution" no less than
thirty nor more than ninety days before the starting date of any payment
(or at such other time as is permitted by law) of his right to elect a
"Direct Rollover" to an "Eligible Retirement Plan" pursuant to the
provisions of this Section. To elect a Direct Rollover, the Distributee
must request in writing to the Plan Administrator that all or a specified
portion of the Eligible Rollover Distribution be transferred directly to
one or more "Eligible Retirement Plans". If a distribution will be made
on behalf of the Distributee in more than one year, the notice specified
in the first sentence of this Paragraph must be given to the Distributee
in each year in which there is an Eligible Rollover Distribution, and the
Distributee must file a new election with the Plan Administrator if he
wishes to have the Eligible Rollover Distribution transferred directly to
an Eligible Retirement Plan.
The Distributee shall not be entitled to elect a Direct
Rollover pursuant to this Section, unless he has obtained any applicable
Spousal Consent that would otherwise be required to obtain a distribution
in the amount of the Eligible Rollover Distribution.
(b) For purposes of this Section, the following definitions
shall apply:
(i) A "Direct Rollover" is a payment by the Plan to the
"Eligible Retirement Plan" specified by the Distributee;
(ii) A "Distributee" includes Participants, a Participant's
surviving spouse and a Participant's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Code Section 414(p), but only with regard to the interest of such
individual under the Plan;
(iii) An "Eligible Retirement Plan" is a retirement plan
which meets the requirements of Code Section 401(a), an annuity described
in Code Section 403(a), an individual retirement account described in
Code Section 408(a), or an individual retirement annuity (other than an
endowment contract) described in Code Section 408(b), the terms of which
permit the acceptance of a Direct Rollover of the Distributee's Eligible
Rollover Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving spouse of a Participant, an Eligible
Retirement Plan is an individual retirement account or an individual
retirement annuity. The Plan Administrator may establish reasonable
procedures for ascertaining that the Eligible Retirement Plan meets the
preceding requirements.
(iv) An "Eligible Rollover Distribution" is any
distribution from this Plan on or after January 1, 1993 of all or any
portion of the balance to the credit of the Distributee, except for
distributions (or portions thereof) which are:
(1) Part of a series of substantially equal periodic
payments (not less frequently than annually) made over the life of the
Participant (or the joint lives of the Participant and the Participant's
designated beneficiary), the life expectancy of the Participant (or the
joint life and last survivor expectancy of the Participant and the
Participant's designated beneficiary), or a specified period of ten years
or more;
(2) Required under Code Section 401(a)(9) (relating to
the minimum distribution requirements); or
(3) The portion of any distribution that is not
includable in gross income (determined without regard to the exclusion
for net unrealized appreciation in employer securities described in Code
Section 402(e)(4).
ARTICLE 8: WITHDRAWALS DURING EMPLOYMENT
8.01 GENERAL CONDITIONS FOR WITHDRAWALS: A Participant's rights
to his After Tax Employee Contribution Account, Tax Deferred Employee
Contribution Account, Company Contribution Account, Employee Stock
Ownership Account, and Rollover Account shall be nonforfeitable at all
times.
Any distribution under this Section may, at the Participant's
election, and subject to such uniform and nondiscriminatory conditions as
the Plan Administrator may require, be transferred to an individual
retirement account or another tax qualified plan, subject to the
provisions of Section 402 of the Code and the regulations thereunder, and
in accordance with the procedures described in Section 7.10 of this Plan.
Subject to the conditions set forth in the subsequent sections of
this Article, upon notice to his Employer in the manner prescribed by the
Administrator for such purpose, a Participant may make withdrawals of all
or a portion of the Vested Value of his Accounts (excluding the Employee
Stock Ownership Account).
All amounts withdrawn shall be paid in cash. In the case of a
partial withdrawal under this Article by a Participant having an interest
in more than one Investment Fund, the amount withdrawn shall be taken,
pro rata, from all Investment Funds in which the Participant maintains
Accounts and from which withdrawal is permissible in the same proportion
as the value of the Participant's interest in each such Fund bears to the
total value of his Accounts.
8.02 OPTIONAL WITHDRAWAL OF AFTER-TAX CONTRIBUTION AND COMPANY
CONTRIBUTION ACCOUNT: A Participant may withdraw all or any part of his
After-Tax Employee Contribution Account, and, subject to the limitation
hereinafter imposed, his Company Contribution Account (including his
Company Contribution Account due to such contributions under the Bowater
Forms Prior Plan) determined as of the next Valuation Date. The amounts
available for withdrawal at any given time shall exclude Company
Contributions made during the two years immediately preceding withdrawal.
These amounts may not be distributed to the Participant until his
termination of Employment or until such amounts have been in the Plan for
at least two years, whichever occurs first.
A Participant who has made a withdrawal under this Section shall not
forfeit any part of his Company Contribution Account.
8.03 SPECIFIED HARDSHIP WITHDRAWAL: A Participant who has
borrowed the maximum amount (if any) available under the Plan may apply
for a Specified Hardship Withdrawal. Under such a withdrawal the Plan
Administrator (or his delegate) may permit the Participant to withdraw
all or a portion of his Tax-Deferred Employee Contributions Account, and
investment return accrued as of December 31, 1988 on his Tax-Deferred
Accounts.
The value of the Accounts for purposes of this Section shall be
determined as of the Valuation Date next preceding the date on which the
Plan Administrator (or his delegate) approves the withdrawal, or the
Valuation Date next following the Participant's application for
withdrawal, whichever Valuation Date is later. The value shall include
Tax-Deferred Employee Contributions made since the applicable Valuation
Date and shall not include the amount of any withdrawals or loans made by
the Participant since the Valuation Date.
A Participant who has made a withdrawal under this Section shall
incur a mandatory suspension of 12 months for all types of contributions.
In addition, the Participant's Tax-Deferred Contributions for the Plan
Year following the withdrawal shall not exceed the limit on Elective
Deferrals under Section 3.04 hereof for that Plan Year, reduced by the
Tax-Deferred Contributions made by the Participant in the Plan Year in
which the withdrawal occurs.
8.04 WITHDRAWAL AFTER AGE 59 1/2: A Participant who has
attained age 59 1/2 may make a withdrawal under the provisions of Section
8.03 without satisfying the conditions of that Section for a specified
Hardship. Upon such a withdrawal, the Participant shall not incur a
Mandatory Suspension.
8.05 WITHDRAWAL OF ROLLOVER ACCOUNT: A Participant who has made
a Rollover Contribution under Section 3.08(b) may withdraw the total
value of his Rollover Account at any time.
A Participant who has made a trust-to-trust transfer under Section
3.08(a) may make withdrawals under the applicable Sections of this
Article. The amounts attributable to such transfer are not segregated in
the Participant's Accounts.
8.06 WITHDRAWAL OF EMPLOYEE STOCK OWNERSHIP ACCOUNT: A
Participant may withdraw the total value of this Account while employed,
beginning December 31, 1994.
8.07 LOANS TO INTERESTED PARTIES: Effective January 1, 1990,
any Active Participant or inactive Participant who is an "interested
party" as defined in Section 3(14) of ERISA may apply for a loan from the
Plan in lieu of a Withdrawal. To obtain a loan, such Participant must
submit a written application for approval on a form and in such manner as
may be prescribed by the Plan Administrators.
Such loan (1) must be at least $1,000, and (2) shall not exceed the
lesser of (i) $50,000, reduced by the excess of the highest outstanding
balance of loans from the Plan during the one-year period ending on the
day before the date the loan is made over the outstanding balance of the
loans from the Plan on the date the loan is made, or (ii) 50% of the
Participant's Vested Value under the Plan.
In addition to such rules and regulations as the Plan Administrator
may adopt, all loans shall comply with the following terms and
conditions:
(a) The Participant shall execute a promissory note and assign
to the Plan his rights to his Accounts to the extent necessary to pay off
the loan in the event of default.
(b) The term for repaying the loan shall be at least 12 months
but not more than 5 years; provided, however, that a loan used to acquire
any dwelling unit which, within a reasonable time, is to be used
(determined at the time the loan is made) as a principal residence of the
Participant shall provide for periodic repayment over a reasonable period
of time that may not exceed 15 years.
(c) Loan disbursements shall be made from the Participant's
Investment Funds in proportion to his vested balance in the Investment
Funds. A loan shall be considered to be an investment of the
Participant's interest in the Plan which has been directed by the
Participant, and the evidence of debt shall be held as an asset in an
account maintained for the borrowing Participant. Repayments of
principal and interest shall be reinvested in accordance with the
Participant's then-current investment election.
(d) The loan shall bear interest at a reasonable rate as
determined by the Plan Administrator. The Plan Administrator shall not
discriminate among Participants in the matter of interest rates, but
loans granted at different times may have different interest rates if, in
the opinion of the Plan Administrator, the difference in rates is
justified by economic conditions.
(e) The loan shall provide that a Participant shall repay his
loan by payroll deductions that will amortize the loan in level payments
over its term, but shall also provide that a Participant may repay the
remaining balance of the loan in a single lump sum through a withdrawal
from the Plan used in whole or in part for such repayment or through a
cash payment. Any Participant who prepays a loan under this subsection
may not rceive another loan within the three month period following the
date the loan is prepaid.
If a Participant is absent from work with less than full
compensation, payroll deductions will continue as long as his pay is
sufficient to cover the amounts due under the terms of the loan. If the
Participant's compensation is insufficient to cover the regular payments
due, the Participant shall make arrangements with the Plan Administrator
for repaying principal and interest on a current basis.
(f) A Participant who qualifies for a hardship withdrawal under
Article 8 may withdraw from the Plan to the extent that such withdrawal
will not result in his loan exceeding the maximum limitations under this
Section, unless the Participant authorizes the Plan Administrator to
apply a sufficient amount of such withdrawal to reduce the loan to the
maximum limitations after such withdrawal.
(g) A Participant shall not be approved for a loan under this
Article until any prior loan has been completely amortized.
(h) A Participant will be deemed to have defaulted on his loan
upon the earlier of:
(i) separation from service due to retirement, death, total
and permanent disability, layoff, or any other reason; or
(ii) failure to make a loan repayment when due.
(i) Upon default, the Plan Administrator may take any action
(including reinstatement of the loan upon receipt of amounts, if any, in
arrears and resumption of timely, regular repayment installments)
permitted by law and consistent with the provisions of the Plan and its
continued qualification to collect the balance due on the loan (or see to
the application of collateral to the payment thereof). No amount shall
be distributed to a Participant in default on an outstanding loan until
the loan is repaid in full. If the amount of any such distribution is
insufficient to repay the loan, the Participant or his Beneficiary shall
be liable for repaying any amount still outstanding.
(j) Nothing in this Section shall preclude the Plan
Administrator from declaring a moratorium on the approval of loans or
from amending this Section subject to applicable regulations issued by
the Internal Revenue Service.
ARTICLE 9: ADMINISTRATION
9.01 FIDUCIARIES:
(a) The following parties are Fiduciaries of the Plan:
(i) The Employer;
(ii) The Plan Sponsor;
(iii) The Trustee; and
(iv) Any committee(s) or individual(s) appointed by
the Employer or the Plan Sponsor as Plan Administrator or to whom
discretionary administrative authority or responsibility with respect to
the Plan has been delegated by the Employer or the Plan Sponsor.
(b) The Plan Administrator shall be the Named Fiduciary.
(c) If a Plan Administrator has not been appointed, or
ceases for any reason to serve, the Employer shall function as the
Administrator until a Plan Administrator (or successor, as appropriate)
is appointed.
(d) The responsibilities of each Fiduciary may be specified
by the Employer and accepted in writing by each Fiduciary. If no such
delegation is made by the Employer, the Fiduciaries may allocate
responsibilities among themselves in writing and notify the Employer and
the Plan Sponsor that they have done so, specifying in such notification
the responsibilities of each Fiduciary. If the Fiduciaries provide a copy
of such notification to the Trustee, the Trustee shall thereafter (until
such time as the Employer, the Plan Sponsor, or the Fiduciaries deliver
to the Trustee a written revocation of such allocation) accept and be
justified in relying upon any documents executed by the appropriate
Fiduciary pursuant to the allocation of responsibilities disclosed in
such notification.
(e) Each Fiduciary shall have only those specific powers,
duties, responsibilities and obligations as are assigned to such
Fiduciary under the Plan, delegated to the Fiduciary by action of the
Employer or the Plan Sponsor, or allocated to the Fiduciary by written
allocation among the Fiduciaries pursuant to Paragraph (d), above.
9.02 RESPONSIBILITIES OF THE PLAN SPONSOR: The Plan Sponsor shall
have the following powers and duties with respect to the Plan;
(a) to appoint the members any committee created to exercise any
responsibility with respect to the Plan;
(b) to terminate the Plan in whole or in part pursuant to the
procedures provided hereunder;
(c) to delegate any of the fiduciary responsibilities under the
Plan to any individual, committee, or entity (including the Employer) it
may designate; provided, however, that any delegation of a fiduciary duty
that has already been assigned by the provisions of the Plan, by previous
action of the Bowater Board, or by written allocation among the
Fiduciaries, shall be effected by delivery in writing to the Fiduciaries
to and from whom such responsibility is being reassigned;
(d) to designate any individual, committee, or entity to whom
fiduciary responsibilities are delegated as an additional Fiduciary or
Named Fiduciary of the Plan; and
(e) to exercise any other powers or responsibilities not
specifically allocated to another fiduciary.
9.03 RESPONSIBILITIES OF THE TRUSTEE: The Trustee shall have the
powers and duties allocated to it in the trust agreement. The Trustee
shall have no other responsibilities with respect to the Plan, except to
the extent such responsibilities are delegated or assigned by the Bowater
Board or its delegate to, and accepted by the Trustee.
9.04 RESPONSIBILITIES OF THE PLAN ADMINISTRATOR: The Plan
Administrator (the "Administrator") shall be responsible for and shall
discharge all duties and obligations imposed on a Plan Administrator by
ERISA and the Code. The Administrator shall prepare, publish, file and
furnish the Plan reporting and disclosure reports, statements, plan
descriptions and benefit rights reports of Participants in the manner and
at the times required by law. The Plan Administrator may employ counsel
and/or consultants to render advice with regard to any responsibility of
the Plan Administrator under the Plan and may employ necessary clerical
help. Any individual or committee designated as the Plan Administrator
shall report to (or as directed by) the Bowater Board in order that the
Plan Administrator's performance of his duties may be periodically
reviewed. In addition, the Plan Administrator shall have the following
powers and duties with respect to the Plan:
(a) To establish and enforce such rules, regulations and
procedures as the Administrator shall deem necessary or proper for the
efficient administration of the Plan;
(b) To interpret the Plan, the Administrator's interpretation
thereof in good faith to be final and conclusive;
(c) To decide all questions concerning the Plan and the
eligibility of any Employee to participate in the Plan;
(d) To compute the amount of benefits which shall be payable to
any Participant, retired Participant or Beneficiary in accordance with
the provisions of the Plan, and to determine the person or persons to
whom such benefits shall be paid;
(e) To advise the Trustee in writing with respect to all
benefits which become payable under the terms of the Plan and to direct
the Trustee to pay such benefits from the Trust Fund;
(f) To submit annually to the Bowater Board or its designee a
report showing in reasonable summary the financial condition of the Plan
and Trust Fund, a summary of the operations of the Plan for the past
year, and any further information which the Bowater Board or its designee
may require;
(g) To maintain all such books of account, records and other
data as shall be necessary for proper administration of and necessary
actuarial valuations for the Plan and to meet the reporting and
disclosure requirements of ERISA;
(h) To appoint any accountant, attorney, consultant or other
professional; and
(i) To appoint Unit Administrators and determine their powers
and to delegate to the Unit Administrators such of the Administrator's
duties as the Administrator may, subject to this Article 9 and the
requirements of ERISA, determine. Any such allocation or delegation
shall be periodically reviewed by the Bowater Board or its designee.
9.05 DELEGATION OF DUTIES: Any committee established by the Plan
Sponsor or at its direction or by its designee may appoint subcommittees
and determine their powers; and the Plan Sponsor and its designees and
their designees may allocate among themselves or may delegate to another
person or persons such of the fiduciary duties as they may in their sole
discretion determine. Any such allocation or delegation shall be
periodically reviewed by the Bowater Board;
The Plan Sponsor, the Administrator and their respective designees,
agents, officers and employees and any committee(s) established by the
Plan Sponsor or at its direction or by its designee, shall be entitled to
rely upon all certificates and reports made by the accountant or
consultant and upon all opinions given by legal counsel; the Plan
Sponsor, the Administrator, and their respective designees, agents,
officers and employees and any committee(s) established by the Plan
Sponsor or at its direction or by its designee, shall be fully protected
in respect to any action taken or suffered by them in good faith and
acting as prudent men would act in like circumstances in reliance upon
such certificate, report or the advice or opinion of such accountant,
consultant or counsel and all action so taken or suffered shall be
conclusive upon each of them and upon all Participants, retired
Participants, surviving Spouses, Beneficiaries and Contingent Annuitants.
9.06 COMMITTEE ACTION: Unless otherwise directed by or at the
direction of the Plan Sponsor, a majority of the members of any
committee(s) established by or at the direction of the Plan Sponsor or by
its designee shall constitute a quorum. Decisions with a quorum present
shall be by majority vote. The action of a majority expressed in writing
without a meeting shall constitute the action of a committee and shall
have the same effect as if assented to by every member.
9.07 INDIVIDUAL INDEMNIFICATION: To the extent permissible under
ERISA, the Plan Sponsor shall indemnify each member of the Plan
Sponsor's/Employer's board of directors, each member of any committee(s)
established by or at the direction of the Plan Sponsor or its designee,
and the Plan Administrator or any of their delegees against costs,
expenses and liabilities, including attorney's fees, incurred in
connection with any action, suit or proceeding instituted against them or
any one of them because of any act of omission or commission performed by
them or any one of them as a director, committee member or Administrator,
or designee or delegee thereof, as the case may be, while acting in good
faith and exercising his judgment for the best interest of the Plan.
Promptly after receipt by an indemnified party under this section of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the Plan Sponsor, notify
the Plan Sponsor of the commencement thereof, and the omission so to
notify the Plan Sponsor will relieve it from the liability hereunder, but
not from any other liability which it may have to such person. The Plan
Sponsor shall be entitled to participate at its own expense in the
defense or to assume the defense of any action brought against any party
indemnified hereunder.
In the event the Plan Sponsor elects to assume the defense of any
such suit, such defense shall be conducted by counsel chosen by it and
reasonably satisfactory to the indemnified party, and the indemnified
party shall bear the fees and expenses of any additional counsel retained
by him.
9.08 EXPENSES: Any expenses reasonably incurred by the Plan
Administrator or the member(s) of any committee(s) in the performance of
their duties shall be paid by the Employer. Such reasonable expenses
include the Employer's securing insurance to protect them from personal
liability resulting from their actions taken in a fiduciary capacity with
respect to this Plan. All reasonable expenses incurred in connection
with the administration of the Plan, including (without limitation) the
compensation of the Trustee, administrative expenses, any investment
management charges and proper charges and disbursements of the Trustee
and compensation and other expenses and charges of any counsel,
accountant, specialist or other person who shall be retained by the
Employer in connection with the administration of the Plan shall be paid
from the Trust Fund to the extent not paid by the Employer.
ARTICLE 10: GENERAL PROVISIONS
10.01 INALIENABILITY OF BENEFITS: No benefit under the Plan shall be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, garnishment, encumbrance or change, and any attempt
to do so shall be void. However, the creation, assignment, or
recognition of a right to any benefit payable with respect to a
Participant pursuant to a qualified domestic relations order (as defined
under the Retirement Equity Act of 1984 and regulations thereunder) shall
not be considered an assignment or alienation of benefits under the Plan.
The Administrator shall comply with such order. However, the amount and
form of benefits provided by the Plan shall not be altered by such order.
10.02 NO RIGHT TO EMPLOYMENT: Nothing herein contained nor any
action taken under the provisions hereof shall be construed as giving any
Employee the right to be retained in the employ of the Employer or as
interfering with the rights of the Employer to discharge an Employee at
any time.
10.03 UNIFORM ADMINISTRATION: Whenever in the administration of the
Plan any action is required by the Administrator such action shall be
uniform in nature as applied to all persons similarly situated and no
such action shall be taken which will discriminate in favor of highly
compensated Participants or Participants whose principal duties consist
of supervising the work of others.
10.04 HEADINGS: The headings of the sections of this Plan are
placed herein for convenience of reference and, in the case of any
conflict, the text of the Plan, rather than such headings, shall control.
10.05 CONSTRUCTION: The Plan shall be construed, regulated and
administered in accordance with the laws of the State of South Carolina,
except to the extent that such laws are superseded by ERISA. The Plan
and the Trust shall be construed so as to qualify under Sections 401(a),
401(k), and 501(a) of the Code.
10.06 UNCLAIMED DISTRIBUTIONS: If within five years after any
distribution becomes due to a Participant or Beneficiary, the same shall
not have been claimed, provided due care shall have been exercised in
attempting to make such distribution, the amount thereof shall be treated
as a forfeiture under Section 4.03 and applied to reduce future Employer
contributions under the Plan; provided, however, that such Employer shall
restore the amount so applied (without further investment return) if and
when the same shall be claimed by the Participant or Beneficiary entitled
to receive it.
10.07 DISTRIBUTIONS TO A LEGAL REPRESENTATIVE: If the
Administrator finds that a person entitled to a benefit is unable to care
for his affairs because he is a minor or because of illness or accident,
the Administrator may direct that any benefits due him, unless claim
shall have been made therefor by a duly appointed legal representative,
shall be paid to the Spouse, child, or legal representative of such
person. Any payments so made under the direction of the Administrator
shall be a complete discharge of the liabilities of the Plan therefor.
10.08 EXPENSES: The Plan shall pay all costs and expenses incurred
in administering the Planto the extent not paid by the Company and/or the
Plan Sponsor.Direct charges and expenses arising out of the purchase or
sale of securities or other assets and taxes levied on or measured by
such transaction, may be charged against the Account(s) of the
Participant(s)in the Investment Fund(s) for which the transaction took
place. The Plan Sponsor shall provide for the allocation of such fees
and expenses among the Employers.
All funds deposited to the Trust Fund and all income earned by the
Trust Fund shall be used for the exclusive benefit of the Plan
Participants and for payment of the expenses of administering the Plan
and the Trust Fund to the extent such expenses are not paid by the
Employers, and for no other purpose. No portion of the Trust Fund shall
revert to or become the property of the Company until all liabilities
under the Trust Fund pursuant to the Plan are satisfied.
10.09 SOURCE OF PAYMENT: Benefits under the Plan shall be payable
only out of the Trust Fund. The Employers shall have no obligation,
responsibility, or liability to make any direct payment of benefits under
the Plan. Except as otherwise provided by law, including ERISA, neither
the Employers nor the Trustee guarantee the Trust Fund against any loss
or depreciation or guarantees the payment of any benefit hereunder.
10.10 PLAN SUBJECT TO TAX APPROVAL: The adoption of the Plan and
the Trust incident hereto, as it applies to any Employer, is expressly
subject to the condition that it shall be approved and qualified by the
Internal Revenue Service as meeting the requirements of Sections 401 and
501 of the Code and regulations issued thereunder with respect to
employees' trusts.
If implementation of any of the provisions of the January 1, 1989
Amendment jeopardizes the Plan's receipt or retention of a favorable
determination by the IRS of its qualification under Sections 401 and 501
of the Code, rendering the abandonment of those provisions to be the
prudent or preferred course of action, then the Plan Administrator may
rescind such provisions of the Plan, whereupon any pre-January 1, 1989
provisions of the Plan requisite to such qualification shall be
reinstated from the effective date of this Amendment to the effective
date of such rescission.
10.11 DISCONTINUANCE OF CONTRIBUTIONS: The Plan is voluntary on
the part of the Employers. Although the Company does not anticipate
terminating the Plan at any point in the foreseeable future, the Company
and each other Employer that elects to participate in the Plan reserves
the right, through its board of directors, to terminate its participation
in the Plan pursuant to Article 11 and/or discontinue further
contributions by Participants or the Employer to the Trustee.
ARTICLE 11: SPECIAL PROVISIONS
11.01 AMENDMENTS TO THE PLAN: The Plan Sponsor reserves the right
at any time and from time to time, and retroactively if deemed necessary
or appropriate to conform with governmental regulations or other
policies, to modify or amend in whole or in part any or all of the
provisions of the Plan; provided that no such modification or amendment
shall make it possible for any part of the funds of the Plan to be used
for, or diverted to, purposes other than for the exclusive benefit of
Participants or their Beneficiaries or the payment of reasonable costs of
administration of the Plan; and provided further, that no such amendment
shall increase the duties of the Trustee without its consent thereto in
writing. Except as may be required to conform with governmental
regulations, neither such amendment nor this amendment and restatement of
the Prior Plans shall adversely affect the rights of any Participant or
Beneficiary with respect to contributions made on his behalf prior to the
date of such amendment nor shall any new or additional condition which
are impermissible, pursuant to Section 411(d) of the Code and the
regulations thereunder, be imposed with respect to an accrued benefits
attributable to service rendered prior to such amendment.
11.02 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS: The Plan shall
not merge or consolidate with, or transfer its assets or liabilities to
any other plan or entity unless each Participant would, if the surviving
plan or entity then terminated, receive a benefit immediately after the
merger, consolidation, or transfer which is equal to or greater than the
benefit he would have been entitled to receive if the Plan had terminated
immediately before the merger, consolidation or transfer.
Any such merger, consolidation, or transfer shall be accomplished in
accordance with applicable regulations of the Internal Revenue Service.
11.03 TERMINATION: The Plan is purely voluntary on the part of the
Company and each other Employer, and the Company and the Plan Sponsor
reserves the right to terminate or completely discontinue contributions
under the Plan, and terminate the Trust Agreement and the trust
hereunder. Upon a complete or partial termination of the Plan, or
complete discontinuance of contributions hereunder, the value of the
Account of each Participant affected by such termination or
discontinuance shall be fully vested, and payment of benefits shall be
made to such Participants or their Beneficiaries either upon such
termination or upon the termination of Employment of the respective
Participants, at the discretion of the Administrator in the same manner
as on termination of Employment under Section 7.04. In the case of a
complete termination or a complete discontinuance of contributions to the
Plan, any forfeitures not previously applied in accordance with Section
4.03 shall be credited ratably to the Accounts of all Participants in
proportion to the amounts of Employer Contributions credited to their
respective Company Contribution Account during the current calendar year,
or the prior calendar year if no Employer Contributions have been made
during the current calendar year.
11.04 WITHDRAWAL OF AN EMPLOYER: Subject to the requirement of
ERISA and the Code, any one or more of the Employers (other than the
Company) may terminate its participation in and withdraw from the Plan by
giving six months' advance notice in writing to the Company of its or
their intention to withdraw, unless a shorter notice shall be agreed to
by the Board.
Upon such withdrawal, the Company shall certify to the Trustee the
equitable shares of such withdrawing Employers in the Trust Fund and the
Trustee shall thereupon set aside such securities and/or property to such
legal representatives as may be designated by such withdrawing
Employer(s).
The withdrawal of an Employer from the Plan shall not constitute a
termination of the Plan as thereafter in effect for any other Employer
that has not withdrawn.
11.05 PROCEDURE: The termination, partial termination or amendment
of this Plan may be effected by the adoption of a resolution by the Board
or the Bowater Board to that effect, or by the execution of an instrument
amending or terminating the Plan by the designee of either the Board or
the Bowater Board, to whom such authority to so act has been given by
resolution of either board. The authorization of the either such board
may be general and need not be given in contemplation of or with
reference to specific terms of amendment or termination.
ARTICLE 12: CLAIMS PROCEDURE
12.01 SUBMISSION OF CLAIMS: Claims for benefits under the Plan
shall be submitted in writing to the Plan Administrator or a person
designated by the Administrator for this purpose. Written notice of the
disposition of a claim shall be furnished to the claimant within 30 days
after the application therefor is filed. Such 30-day period may be
extended (for an additional 90 days) if the Administrator determines that
such an extension of time is necessary to process the claim and so
advises the claimant in writing within 30 days after receipt of the
claim.
12.02 WRITTEN NOTICE OF DENIED CLAIM: The Administrator shall
provide adequate notice in writing to any person whose claim for benefits
has been denied. Such notice shall set forth the specific reason or
reasons for the denial and shall be written in a manner calculated to be
understood by the recipient. Such notice shall also refer specifically
to pertinent Plan provisions on which the denial is based; shall describe
any additional material or information necessary for the claimant to
perfect the claims; and shall explain why such material or information is
necessary. Such notice shall also explain the Plan's claims review
procedure.
12.03 REVIEW OF DECISION DENYING CLAIM: If a claimant's claim has
been denied in whole or in part, the claimant shall be advised in writing
that he or his duly authorized representative may request a review by the
Bowater Board or its designee upon written application to the Plan
Administrator. The claimant or his duly authorized representative shall
request such review in writing not more than 90 days after receipt by the
claimant of written notification of denial of a claim. Within 10 days
after, or as part of, a timely request for review, the claimant may
submit issues and comments in writing and may review pertinent documents.
12.04 HEARING: Upon receipt of a timely request for review, the
Bowater Board or its designee may hold a hearing, or,in its discretion,
appoint one or more of its members (or if its designee is a committee,
the committee may appoint one or more of its members) to hear the
claimant's request and inquire into the merits of the matter. Such
member(s) shall meet promptly with the claimant and/or his duly
authorized representative and hear such arguments and/or examine such
documents as the claimant or his representative shall present. The
member(s) shall report his (their) findings to the Board or its designee
and the Plan Administrator orally or in writing.
12.05 WRITTEN DECISION OF COMMITTEE: A decision of the Bowater
Board or its designee on review of a claim shall be in writing and shall
include specific reasons for the decision, written in a manner calculated
to be understood by the claimant. Such decision shall include specific
references to the pertinent Plan provisions on which the decision is
based. The decision shall be made promptly and not later than 60 days
after a request for review, unless special circumstances require an
extension of time for processing, in which case the claimant shall be so
advised in writing prior to the expiration of the initial 60-day period
and decision shall be rendered as soon as possible, but not later than
120 days after receipt of a request for review.
ARTICLE 13: TOP-HEAVY PROVISIONS
13.01 OVERRIDING PROVISION: If the Plan is or becomes top-heavy in
any Plan Year beginning after December 31, 1983, the provisions of this
Article shall supersede any conflicting provisions in the Plan.
13.02 DEFINITIONS:
(i) DETERMINATION DATE: For any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan Year. For the first
Plan Year of the Plan, the last day of that Year.
(ii) EARNINGS: For purposes of this Article 13, the
compensation that is included on the Employee's Form W-2 for the calendar
year that ends with or within the Plan Year plus the amount of any Tax
Deferred Contributions made on behalf of the Employee for such calendar
year.
(iii) KEY EMPLOYEE: Any Employee or former employee (and
the beneficiary(ies) of such employee) who, at any time during the
determination period, was a Key Employee, in accordance with Section
416(i)(1) of the Code and regulations thereunder. A non-key Employee is
an Employee who is not a key Employee, or is a former Key Employee.
(iv) PERMISSIVE AGGREGATION GROUP: The Required Aggregation
Group of plans plus any other plan or plans of the Employer which, when
considered as a group with the Required Aggregation Group, would continue
to satisfy the requirements of Sections 401(a)(4) and 410 of the Code.
(iv) PRESENT VALUE: The value based on the 1983 Group
Annuity Mortality Table, separately for males and females, and an
interest rate of 5% per annum.
(v) REQUIRED AGGREGATION GROUP: (1) Each qualified plan of
the Employer in which at least one Key Employee participates, and (2) any
other qualified plan of the Employer which enables a plan described in
(1) to meet the requirements of Sections 401(a)(4) and 410 of the Code.
(vi) TOP-HEAVY PLAN: For any Plan Year, this Plan is top-
heavy if any of the following conditions exist:
(a) If the Top-Heavy Ratio for this Plan exceeds 60
percent and the Plan is not part of any Required Aggregation Group or
Permissive Aggregation Group of plans;
(b) If this Plan is a part of a Required Aggregation
Group of plans (but not part of a Permissive Aggregation Group) and the
Top-Heavy Ratio for the group of plans exceeds 60 percent; or
(c) If this Plan is a part of a Required Aggregation
Group of plans and part of a Permissive Aggregation Group and the Top-
Heavy Ratio for the group of plans exceeds 60 percent.
(vii) TOP-HEAVY RATIO:
(a) If the Employer maintains one or more defined
benefit plans and has not maintained any defined contribution plans
(including any simplified employee pension plan), which, during the 5-
year period ending on the Determination Date, has or has had account
balances, the Top-Heavy Ratio for this group alone or for the Required or
Permissive Aggregation Group, as applicable, is a fraction. The
numerator is the sum of the Present Values of accrued benefits of all Key
Employees as of the Determination date, and the denominator of which is
the sum of the Present values of all accrued benefits, determined in
accordance with Section 416 of the Code and the regulations thereunder.
Both the numerator and the denominator include any part of any accrued
benefits distributed in the 5-year period ending on the Determination
Date.
(b) If the Employer maintains one or more defined
benefit plans and maintains or has maintained one or more defined
contribution plans (including any simplified employee pension plan),
which, during the 5-year period ending on the Determination Date, has or
has had any account balances, the Top-Heavy Ratio for any Required or
Permissive Aggregation Group, as applicable, is a fraction. The
numerator is the sum of the Present Values of accrued benefits under the
aggregate defined benefit plan or plans for all Key Employees, determined
in accordance with (a) above, plus the sum of account balances under the
aggregate defined contribution plan or plans of all Key Employees as of
the Determination Date. The denominator is the sum of the Present Values
of all accrued benefits under the aggregate defined benefit plan or plans
for all Participants and the sum of the account balances under the
aggregate defined contribution plan or plans for all Participants, all
determined in accordance with Section 416 of the Code and the regulations
thereunder. Both the numerator and the denominator include any part of
any accrued benefits or account balances distributed in the 5-year period
ending on the Determination Date.
(c) For purposes of (a) and (b) above, the value of
account balances and the Present Value of accrued benefits will be
determined as of the most recent Valuation Date that falls within or ends
with the 12-month period ending on the Determination Date, except as
provided in Section 416 of the Code and the regulations thereunder for
the first and second plan years for a defined benefit plan. The account
balances and accrued benefits will be disregarded for a participant: (1)
who is not a Key Employee but who was a Key Employee in a prior year, or
(2) who has not received any compensation from any employer maintaining
the plan at any time during the 5-year period ending on the Determination
Date. The calculation of the Top-Heavy Ratio, and the extent to which
distributions, rollovers, and transfers are taken into account will be
made in accordance with Section 416 of the Code and the regulations
thereunder. Deductible employee contributions will not be taken into
account for computing the Top-Heavy Ratio. When aggregating plans, the
values of account balances and accrued benefits will be calculated with
reference to the Determination Dates that fall within the same calendar
year.
(viii) VALUATION DATE: The first day of the Plan Year.
13.03 MINIMUM CONTRIBUTION: For any Plan Year in which this Plan is
top-heavy, each non-key Employee who is eligible to participate under
Section 2.01 and who is not a participant under any defined benefit plan
maintained by his Employer under which minimum benefits are on his behalf
provided shall have a minimum contribution credited to his Accounts,
determined as follows:
(i) A minimum contribution of 4% of Earnings, if the Top-
Heavy Ratio off this Plan is less than 90%, and the Top-Heavy Ratio is
less than 60% for any defined benefit plan maintained by the Employer or
an Affiliated Company in which he participates; or
(ii) A minimum contribution of 5% of Earnings, if the Top-
Heavy Ratio of this Plan is less than 90%, and the Top-Heavy Ratio is
between 60% and 90% for any defined benefit plan maintained by the
Employer or an Affiliated Company in which he participates; or
(iii) A minimum contribution of 4% of Earnings, if the Top-
Heavy Ratio of this Plan is 90% or more.
Such contribution will be made with respect to any such Employee who
has performed or will perform 1,000 Hour of Service (or the equivalent)
for such Plan Year or has made any contributions to this Plan with
respect to such Plan Year. This contribution shall not include amounts
contributed under Section 3.01.
For any Plan Year in which the Top-Heavy Ratio for this Plan is 90%
or more, the 125% factor in Section 4.03 shall be reduced to 100%.
13.04 EARNINGS: For any Plan Year beginning prior to January 1,
1994 in which the Plan is top-heavy, the maximum Earnings taken into
account for the determination of benefits for any Key Employee shall be
$200,000, or such amount prescribed by regulations under Section 416(d)
of the Code.
ARTICLE 14: EXERCISE OF SHAREHOLDERS'S RIGHTS
14.01 VOTING RIGHTS: Each Participant shall be entitled to direct
the Trustee as to the manner in which the Shares of Plan Sponsor Stock
allocated to his Account are to be voted. The Trustee, through the Plan
Administrator, shall notify Participants of each occasion for the
exercise of voting rights within a reasonable time prior to the date such
rights are to be exercised. The notification shall include all
information that the Plan Sponsor distributes to other shareholders
regarding the exercise of such rights.
Not less than five (5) business days prior to the date on which such
voting rights are to be exercised, each Participant wishing to exercise
such rights shall inform the Trustee, in the form and manner prescribed
by the Plan Administrator, with respect to the manner in which such
voting rights are to be exercised. If a Participant does not direct the
Trustee in whole or in part with respect to the exercise of voting rights
attributable to Shares of Plan Sponsor Stock allocated to his Accounts,
the Trustee shall not exercise such voting rights. To the extent
possible, the Trustee shall vote the combined fractional Shares of Plan
Sponsor Stock allocated to the Account balances of Participants to
reflect the directions of the Participants to whom such fractional Shares
of PLan Sponsor Stock are allocated.
Neither the Trustee nor the Plan Administrator may make any
recommendation to the Participants regarding the manner of exercising any
voting rights, including whether or not such rights should be exercised.
14.02 RIGHTS OTHER THAN VOTING RIGHTS: Each Participant shall be
entitled to direct the Trustee, in the form and manner prescribed by the
Plan Administrator, with respect to the exercise of rights, other than
voting rights, attributable to his interest in the Shares of Plan Sponsor
Stock allocated to his Accounts.
IN WITNESS WHEREOF, BOWATER COMMUNICATION PAPERS INC. has caused
this document to be executed by its duly authorized officers and its
corporate seal to be affixed hereto this 27th day of December 1994.
BOWATER COMMUNICATION PAPERS INC.
/S/ Robert C. Lancaster
By:____________________________________
[f:\fallon\bowater\bcpi\exh-99.bcp]
