<PAGE> 1
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
incorporation or organization) Identification No.)
55 EAST CAMPERDOWN WAY
P.O. BOX 1028
GREENVILLE, SOUTH CAROLINA 29602
(864) 271-7733
----------------------------------------
(Address of principal executive offices)
BOWATER INCORPORATED/CAROLINA DIVISION
HOURLY 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
(864) 271-7733
---------------------------------------------------------
(Name, address and telephone number of agent for service)
----------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be Offering Price Aggregate Registration Fee
To be Registered Per Share(1) Offering Price(1)
Registered
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 600,000 $38.8125 $23,287,500 $8,030.17
$1.00 par value
============================================================================================================
</TABLE>
(1) The offering price for such shares is estimated pursuant to Rule
457(c) and (h) solely for the purpose of calculating the registration fee and
is based upon the average of the high and low prices of the Registrant's Common
Stock as reported on the consolidated reporting system for April 24, 1996.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
------------------------------
This Registration Statement shall become effective automatically upon
the date of filing in accordance with Section 8(a) of the Securities Act of
1933, as amended, and 17 C.F.R. Section 230.462.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated in
this Registration Statement by reference:
(1) The latest annual reports of the Registrant and the Plan filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act");
(2) All other reports filed by the Registrant pursuant to Sections
13(a) and 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") since
December 31, 1994;
(3) The description of the Registrant's Common Stock, $1.00 par
value per share, contained in a registration statement filed under the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant and the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act after the
date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered 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 thereof from the date
of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The Registrant's Common Stock, par value $1.00 per share, is
registered pursuant to Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
2
<PAGE> 3
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.
3
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
See Exhibit Index.
(a) Not applicable.
(b) Pursuant to Item 8 of Form S-8, the 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.
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering.
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 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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report under Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report under Section 15(d) of the Securities Exchange Act of
1934) 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.
4
<PAGE> 5
(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such
issue.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Greenville, State of South Carolina, on the
24th day of April, 1996.
BOWATER INCORPORATED
/s/ Arnold M. Nemirow
By:
------------------------------------------
Arnold M. Nemirow
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 indicated, on the 24th day of April, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Arnold M. Nemirow
President, Chief Executive Officer and
- ------------------------------------------- Chairman of the Board of Directors
Arnold M. Nemirow (principal executive officer)
/s/ David G. Maffucci
Senior Vice President, Chief Financial Officer and
- ------------------------------------------- Treasurer (principal financial officer)
David G. Maffucci
/s/ Michael F. Nocito
Vice President - Controller (principal accounting
- ------------------------------------------- officer)
Michael F. Nocito
* Director
- -------------------------------------------
Francis J. Aguilar
* Director
- -------------------------------------------
Hugh D. Aycock
Director
- -------------------------------------------
Richard Barth
* Director
- -------------------------------------------
Kenneth M. Curtis
</TABLE>
6
<PAGE> 7
<TABLE>
<S> <C>
* Director
- -------------------------------------------
H. Gordon MacNeill
* Director
- -------------------------------------------
Donald R. Melville
* Director
- -------------------------------------------
James L. Pate
* Director
- -------------------------------------------
John A. Rolls
</TABLE>
* /s/ Wendy C. Shiba , by signing his/her named hereto, does
sign this document on behalf of the persons indicated above pursuant to powers
of attorney duly executed by such persons.
By: /s/ Wendy C. Shiba
------------------------------------
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 Bowater Southern Hourly
Employees' Savings 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, on the 24th day of April, 1996.
BOWATER INCORPORATED/CAROLINA DIVISION
HOURLY EMPLOYEES' SAVINGS PLAN
By: /s/ Aaron b. Whitlock
----------------------------
Aaron B. Whitlock
----------------------------
Plan Administrator
7
<PAGE> 8
EXHIBIT INDEX
The following exhibits are filed as part of this Registration Statement.
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the
Registrant, as amended (incorporated by reference
to Exhibit 4.2 to the Registrant's Registration
Statement No. 33-51569).
4.2 Certificate of Designations of the 7% PRIDES,
Series B Convertible Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 4.1 to the Registrant'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 Registrant
(incorporated by reference to Exhibit 4.2 to
the Registrant's Current Report on Form 8-K
dated February 1, 1994).
4.4 Bylaws of the Registrant, amended and restated
as of July 26, 1995, (incorporated by reference to
Exhibit 3.1 to the Registrant's quarterly report filed
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 Registrant's Registration
Statement No. 2-93455).
4.6 Rights Agreement between the Registrant
and Morgan Guaranty Trust Company of
New York (incorporated by reference to
Exhibit 4.6 to the Registrant's Registration
Statement No. 33-61219).
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
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 Registrant's Registration Statement
No. 33-61219).
4.7 Indenture, dated as of August 1, 1989, by and
between the Registrant and Manufacturers
Hanover Trust Company, as Trustee, with
respect to the 9% Debentures Due 2009
(incorporated by reference to Exhibit 4.7
to the Registrant's Registration Statement
No. 33-61219).
4.8 Indenture, dated as of December 1, 1991, by
and between the Registrant 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 Registrant's Annual Report on
Form 10-K for 1991).
4.9 Indenture, dated as of December 1, 1991,
by and between the Registrant 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 Registrant's
Annual Report on Form 10-K for 1991).
4.10 Indenture, dated as of October 15, 1992, by
and between the Registrant 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 Registrant's Annual Report on
Form 10-K for 1992).
4.11 Indenture, dated as of October 15, 1992,
between the Registrant 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 Registrant's Annual Report on
Form 10-K for 1992).
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.12 Deposit Agreement, dated as of February
1, 1994, by and among the Registrant,
Trust Company Bank, as Depositary,
and the holders from time to time of the
Depositary Receipts relating to the
Registrant's 7% PRIDES, Series B
Convertible Preferred Stock, together with
form of Depositary Receipt (incorporated
by reference to Exhibit 4.3 to the
Registrant'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 Registrant,
Trust Company Bank, as Depositary,
and the holders from time to time of the
Depositary Receipts relating to the
Registrant's 8.4% Series C Cumulative
Preferred Stock, together with form of
Depositary Receipt (incorporated by
reference to Exhibit 4.4 to the
Registrant's Current Report on
Form 8-K dated February 1, 1994).
4.14 Copy of the Bowater Incorporated/Carolina
Division Hourly Employees' Savings Plan Effective
January 1, 1985, As Amended and Restated
Effective January 1, 1989 (Incorporating
Amendments made through December 15, 1994).
23.1 Consent of KPMG Peat Marwick LLP
dated April 29, 1996 is filed herewith.
24.1 Powers of Attorney authorizing the signing
of the Registration Statement and amendments
hereto on behalf of the Registrant's directors.
</TABLE>
<PAGE> 1
EXHIBIT 4.14
BOWATER INCORPORATED/CAROLINA DIVISION
HOURLY EMPLOYEES' SAVINGS PLAN
Effective January 1, 1985
As Amended and Restated Effective
January 1, 1989
(Incorporating Amendments made through December 15, 1994)
<PAGE> 2
BOWATER CAROLINA HOURLY EMPLOYEES' SAVINGS PLAN
(Effective January 1, 1985)
As Amended and Restated Effective January 1, 1989
(Incorporating Amendments made through December 15, 1994)
PREAMBLE
Establishment of Plan
The Bowater Carolina Hourly Employees' Savings Plan is established
effective January 1, 1985 for the benefit of eligible hourly Employees of the
Company, and of such of its subsidiaries as might adopt the Plan. The plan is
established and maintained pursuant to collective bargaining agreements between
Bowater Incorporated Carolina Division and the United Paperworkers'
International Union and with its Locals 925 and 1924.
Amendment and Restatement of Plan
Effective January 1, 1989, the Plan is amended and restated to bring
its provisions into conformance with the Tax Reform Act of 1986, accommodate
certain provisions of the July 1, 1994 Master trust Agreement between Bowater
Incorporated and Fidelity Management Trust Company, and to conform the
language of the Plan to administrative practice.
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 41, 401(a), 401(k), 409 and 501(a) of the Internal Revenue Code of
1954, as amended from time to time (hereinafter the "Code"), and the provisions
of the Employee Retirement Income Security Act of 1974, as amended from time to
time.
<PAGE> 3
BOWATER CAROLINA HOURLY EMPLOYEES' SAVINGS PLAN
(Effective January 1, 1985)
As Amended and Restated Effective
January 1, 1989
(Incorporating Amendments made through December 15, 1994)
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1: DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 ACTIVE PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.03 AFFILIATED COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.04 BASIC EMPLOYEE CONTRIBUTION ACCOUNTS (TAX-DEFERRED AND NON TAX-DEFERRED) . . . . . . . . . . . . . . 1
1.05 BENEFICIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.06 BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.07 CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.08 COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.09 COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 CURRENT OR ACCUMULATED PROFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.11 DISABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.12 EARNINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.13 EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.14 EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.15 EMPLOYEE STOCK OWNERSHIP ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.16 EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.17 EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.18 ENROLLMENT DATE: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.19 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.20 FIDUCIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.21 FORFEITURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.22 HOUR OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.23 INITIAL COMPANY CONTRIBUTION ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.24 INVESTMENT FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.25 MATCHING COMPANY CONTRIBUTION ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.26 PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.27 PAYROLL-BASED EMPLOYEE STOCK OWNERSHIP CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . 4
1.28 PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.29 PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.30 PLAN TO PLAN TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.31 PLAN TO PLAN TRANSFER ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.32 PLAN YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.33 RETIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.34 SEVERANCE FROM SERVICE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.35 SHARE OF COMPANY STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.36 SPECIFIED HARDSHIP WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.37 SPOUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.38 SUPPLEMENTAL NON TAX-DEFERRED EMPLOYEE CONTRIBUTION ACCOUNT . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
1.39 SUPPLEMENTAL TAX-DEFERRED EMPLOYEE CONTRIBUTION
ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.40 TRUST AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.41 TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.42 TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.43 VALUATION DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.44 VESTED VALUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.45 YEAR OF BREAK IN SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.46 YEAR OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 2: ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.01 ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.02 PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.03 CESSATION OF ACTIVE PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.04 EFFECT OF REEMPLOYMENT ON PLAN ENTRY OR REENTRY . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.05 PRIOR EMPLOYMENT WITH AN AFFILIATED COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 3: PARTICIPANT CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.01 BASIC TAX-DEFERRED EMPLOYEE CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.02 SUPPLEMENTAL TAX-DEFERRED EMPLOYEE CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.03 NON TAX-DEFERRED EMPLOYEE CONTRIBUTIONS (BASIC AND SUPPLEMENTAL) . . . . . . . . . . . . . . . . . 11
3.04 MODE OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.05 LIMITATION ON CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.06 CHANGE IN AMOUNT OF CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.07 VOLUNTARY SUSPENSION OF PARTICIPANT CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . 15
3.08 PLAN TO PLAN TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.09 EMPLOYMENT WITH AFFILIATED COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.10 ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 4: EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.01 MATCHING CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.02 INITIAL COMPANY CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.03 PAYROLL-BASED EMPLOYEE STOCK OWNERSHIP CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . 18
4.04 MODE OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.05 FORFEITURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.06 RETURN OF CERTAIN CONTRIBUTIONS TO EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.07 STATUTORY LIMITATION ON ADDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.08 COMBINED PLANS LIMITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 5: INVESTMENT OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.01 INVESTMENT OF PARTICIPANT AND EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . 24
5.02 INVESTMENT ELECTIONS BY PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.03 CHANGES IN CURRENT INVESTMENT ELECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.04 TRANSFER OF ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
</TABLE>
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<TABLE>
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ARTICLE 6: VALUATION OF PARTICIPANTS' ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.01 ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.02 VALUATION OF ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.03 AMOUNT OF PARTICIPANT'S ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.04 STATEMENT OF PARTICIPANT ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.05 TIMING OF CREDITS AND DEDUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 7: BENEFITS UPON RETIREMENT, DEATH, DISABILITY,
OR TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.01 RETIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.02 DEATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.03 DISABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.04 OTHER TERMINATION OF EMPLOYMENT AND VESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.05 TRANSFER FROM HOURLY TO SALARIED EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.06 ELECTION OF BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.07 METHOD OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.08 PROOF OF DEATH AND RIGHT OF BENEFICIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.09 DIRECT ROLLOVER OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 8: WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.01 GENERAL CONDITIONS FOR WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.02 WITHDRAWAL OF INITIAL AND MATCHING COMPANY
CONTRIBUTION ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.03 WITHDRAWAL OF BASIC NON TAX-DEFERRED EMPLOYEE
CONTRIBUTION ACCOUNT AND SUPPLEMENTAL NON TAX-DEFERRED
EMPLOYEE CONTRIBUTION ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.04 SPECIFIED HARDSHIP WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.05 WITHDRAWAL AFTER AGE 59-1/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.06 WITHDRAWAL OF EMPLOYEE STOCK OWNERSHIP
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.07 WITHDRAWAL OF PLAN TO PLAN TRANSFER ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.08 WITHDRAWAL OF ROLLOVER ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 9: ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.01 FIDUCIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.02 RESPONSIBILITIES OF THE EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.03 RESPONSIBILITIES OF THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.04 RESPONSIBILITIES OF THE PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.05 DELEGATION OF DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.06 COMMITTEE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.07 INDIVIDUAL INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.08 EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 10: SAVINGS COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.01 COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.02 COMMITTEE POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.03 DESIGNATION AND ALLOCATION OF FIDUCIARY
</TABLE>
3.
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<TABLE>
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RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.04 REVIEW OF FIDUCIARY RESPONSIBILITY DESIGNATIONS OR
ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.05 SERVICE IN VARIOUS CAPACITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.06 RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.07 REPORTS TO PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.08 REVIEW OF PLAN'S FINANCIAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.09 PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
10.10 STANDARDS OF CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
10.11 CHANGES IN COMMITTEE DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.12 TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.13 EXCLUSIVE BENEFIT OF PARTICIPANTS AND
BENEFICIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.14 INVESTMENT MANAGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.15 CONFLICTING/AMBIGUOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE 11: GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.01 INALIENABILITY OF BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.02 NO RIGHT TO EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.03 UNIFORM ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.04 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.05 CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.06 UNCLAIMED DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.07 DISTRIBUTIONS TO A LEGAL REPRESENTATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.08 EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.09 SOURCE OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.10 PLAN SUBJECT TO TAX APPROVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.11 DISCONTINUANCE OF CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 12: SPECIAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
12.01 AMENDMENTS TO THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
12.02 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
12.03 TERMINATION, PARTIAL TERMINATION, OR
DISCONTINUANCE OF CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
12.04 WITHDRAWAL OF AN EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
12.05 PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 13: CLAIMS PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
13.01 SUBMISSION OF CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
13.02 WRITTEN NOTICE OF DENIED CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
13.03 REVIEW OF DECISION DENYING CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
13.04 HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
13.05 WRITTEN DECISION OF COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 14: EXERCISE OF SHAREHOLDER'S RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
14.01 VOTING RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
14.02 RIGHTS OTHER THAN VOTING RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
</TABLE>
4.
<PAGE> 7
BOWATER CAROLINA HOURLY EMPLOYEES' SAVINGS PLAN
(Effective January 1, 1985)
As Amended and Restated Effective January 1, 1989
(Incorporating Amendments made through December 15, 1994)
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 Basic and Supplemental
Tax-Deferred Employee Contribution Accounts, Non Tax-Deferred Employee
Contribution Account, Initial Company Contribution Account, Employee Stock
Ownership Account, Plan to Plan Transfer Account, and Matching Company
Contribution Account, as described under Articles 3 and 4.
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, or an
Employee who has established a Plan to Plan Transfer Account under Article 3.
1.03 AFFILIATED COMPANY: Any division or company directly or
indirectly controlled by, controlling, or under common control with the Company
within the meaning of Section 1563(a) of the Internal Revenue 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 Code Section 414(m)of the
code. With respect to periods prior to July 23, 1984, Affiliated Company
includes any company which would have been an Affiliated Company prior to the
separation under United Kingdom law of the Company from Bowater plc.
1.04 BASIC EMPLOYEE CONTRIBUTION ACCOUNTS (TAX-DEFERRED AND NON
TAX-DEFERRED): The value of that portion of the Trust Fund which with respect
to any Participant, is attributable to his Basic Employee Contributions. Basic
Tax-Deferred Contributions made under Section 3.01 shall be maintained in the
Participant's Basic Tax-Deferred Employee Contribution Account. Basic Non
Tax-Deferred Contributions made under Section 3.03 shall be maintained in the
Participant's Basic Non Tax-Deferred Employee Contribution Account.
5.
<PAGE> 8
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 shall be the first of the following classes of successive
preference beneficiaries then surviving; the Participant's (a) widow or
widower; (b) children; (c) parents; (d) brothers and sisters; (e) executor or
administrator.
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 Savings Plan
Committee or a notary public, or it is established to
the satisfaction of the Committee 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 CODE: The Internal Revenue Code of 1954, 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.
1.08 COMMITTEE: The Savings Plan Committee appointed and acting in
accordance with Article 10.
1.09 COMPANY: Bowater Incorporated or any successor by merger,
purchase, or otherwise with respect to its Employees.
1.10 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. If the current or accumulated net profits of any
Employer are not sufficient to permit the required Employer Contributions, then
the amount of the Employer Contribution which such Employer is not permitted to
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 employer by such
other Employer.
6.
<PAGE> 9
No reimbursement shall be required as a result of such contribution.
1.11 DISABILITY: The status of being totally and permanently
disabled, as determined by the Committee in its sole discretion, based on
satisfactory evidence furnished to the Committee by the Employer, based on the
determination of the Employer, and certification to the Committee, the
Employee, by reason of physical or mental disability, is incapable of further
Employment in the capacity in which employed prior to such physical or mental
disability and the Employment of such employee is terminated due to such
Disability. Such Employee must have been so disabled for six months and have
been awarded and continue to receive disability payments under the Federal
Social Security Act.
1.12 EARNINGS: The lesser of (i) the compensation paid to an
Employee by the Employer for services performed for the Employer, including any
overtime pay, or any other form of extra remuneration, any contributions to the
Plan under Sections 3.01 and 3.02, and any compensation excluded from taxable
income under Section 125 of the Code; or (ii) $200,000, or such higher limit as
may be in effect under Section 4.01(a)(17) of the Code for such year; provided,
however, that on and after January 1, 1994, the $200,000 annual Earnings
limitation shall be limited to $150,000, adjusted for changes in the cost of
living as provided in Section 415(d) of the Code in $10,000 increments rounded
down to the nearest $10,000, for benefit accruals commencing on and after such
date.
1.13 EFFECTIVE DATE: January 1, 1985 for contributions under
Section 4.03 and September 1, 1986 for all other contributions hereunder or, in
the case of an Employer other than the Company, the date such employer becomes
an Employer. Except as otherwise provided herein, the provisions of this
amended and restated Plan are effective January 1, 1989.
1.14 EMPLOYEE: Any individual who (a) is hired to perform duties
for an Employer on an hourly basis, (b) is subject to its control, and (c)
receives a regular stated compensation other than a pension, severance pay,
retainer, or fee under contract, but shall not include an individual who
performs services as a leased employee within the meaning of Section 414(n) of
the Code.
1.15 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 Section 4.03.
1.16 EMPLOYER: Bowater Incorporated/Carolina 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
7.
<PAGE> 10
and conditions as said Board shall determine and with the approval of the-board
of directors or officers of such Affiliated Company.
1.17 EMPLOYMENT: The service as an Employee with an Employer on
and after the effective date of the Employer's adoption of the Plan.
1.18 ENROLLMENT DATE: September 1, 1986, 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.
1.19 ERISA: The Employment 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.
1.20 FIDUCIARY: A person or company who exercises discretionary
control over the Plan or assets, as defined in Section 3(21) of ERISA.
1.21 FORFEITURES: The excess of all amounts in Participants'
Accounts, accumulated with investment return, over the Vested Values, upon
distribution of such values.
1.22 HOUR OF SERVICE: Each hour, or part thereof, for which an
Employee is paid, directly or indirectly, or entitled to payment, for the
performance of duties for his Employer during the applicable computation
period, as defined in Section 1.46.
1.23 INITIAL 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 4.02.
1.24 INVESTMENT FUNDS: The funds, together with the investment
return thereon, as established within the Trust Fund from time to time at the
direction of the Employer in accordance with Section 5.01.
1.25 MATCHING 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 the Employer under
Section 4.01.
1.26 PARTICIPANT: An Active Participant, former Active
Participant, or Employee who has contributions credited to his Accounts.
8.
<PAGE> 11
1.27 PAYROLL-BASED EMPLOYEE STOCK OWNERSHIP CONTRIBUTION: With
respect to any Participant, the Payroll-Based Employee Stock Ownership
Contributions made on his behalf under Section 4.03.
1.28 PLAN: The Bowater Incorporated/Carolina Division Hourly
Employees' Savings Plan as set forth herein, and as it may be amended from time
to time.
1.29 PLAN ADMINISTRATOR: The Company or the individual(s) and/or
the committee(s) appointed in accordance with Article 9 pursuant to procedures
established by the Board to administer the Plan.
1.30 PLAN TO PLAN TRANSFER: A direct transfer of an Employee's
Accounts, as provided in Section 3.08.
1.31 PLAN TO PLAN TRANSFER ACCOUNT: The value of that portion of
the Trust Fund which, with respect to any Participant, is attributable to
amounts received by the Trustee under Section 3.08.
1.32 PLAN YEAR: The calendar year commencing January 1 and ending
December 31.
1.33 RETIREMENT: Early retirement (on or after attainment of age
50 with fifteen or more years of service) or normal retirement (attainment of
age 65), or postponed retirement (between ages 65 and 70 or such other age as
may be required by law) under the Pension Plan for Employees of the Southern
and Carolina Divisions of Bowater Incorporated, or, if an Employer has its own
qualified retirement plan, early, normal, or postponed retirement with respect
to eligible Employees under such Employers retirement plan. A participant will
be considered to have retired under the Plan if he terminates employment on or
after attaining age 55.
1.34 SEVERANCE FROM SERVICE DATE: The earlier of (a) and (b):
(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
9.
<PAGE> 12
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.
In the case of an Employee on a leave of absence described in the
definition of Year of Break in Service, the Employee shall not incur a
Severance from Service while on such a leave. However, if such an
Employee does not return to employment within the period set forth in
the definition of Year of Break in Service, such Employee shall be
deemed to have incurred a Severance from Service in accordance with
paragraph (a) of this Section.
1.35 SHARE OF COMPANY STOCK: A share of common stock of the
Company 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 or semester 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 (including
reasonably anticipated state and federal taxes and penalties payable with
respect to the receipt of the amount withdrawn) incurred by the Participant due
to such emergency and shall not be reasonably available from other resources of
the Participant. Such resources include all distributions (other than
Hardship) 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: 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.
10.
<PAGE> 13
1.38 SUPPLEMENTAL NON TAX-DEFERRED EMPLOYEE CONTRIBUTION ACCOUNT:
The value of that portion of the Trust Fund which, with respect to any
Participant, is attributable to his Supplemental Non Tax-Deferred Employee
Contributions under Section 3.03.
1.39 SUPPLEMENTAL TAX-DEFERRED EMPLOYEE CONTRIBUTION ACCOUNT: The
value of that portion of the Trust Fund which, with respect to any Participant,
is attributable to his Supplemental Tax-Deferred Employee Contributions under
Section 3.02.
1.40 TRUST AGREEMENT: The Master Trust Agreement between the
Company and Fidelity Management Trust Company (and any successors thereto) as
from time to time amended pursuant to Article 10 of the Plan, which provides
for the investment of all contributions made under the Plan.
1.41 TRUST FUND: The aggregate funds held by the Trustee under the
Plan.
1.42 TRUSTEE: Fidelity Management Trust Company, as trustee under
the Trust Agreement and its successors at any time appointed pursuant to the
Plan.
1.43 VALUATION DATE: The last business day of each calendar
quarter (and any other date specified by the Trustee), on which the Trust Fund
is valued in accordance with Article 6. As to Accounts maintained in any
Investment Fund which is valued daily, each business day may be deemed to be a
Valuation Date. A Comprehensive Valuation Date is one on which all Investment
Funds are valued.
1.44 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.
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 active Employment upon the expiration
of such leave, or on military leave in excess of twelve months and returns to
active employment with an Employer within ninety days after his discharge, or
such longer period as may be prescribed by law.
1.46 YEAR OF SERVICE: 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
11.
<PAGE> 14
recommencing employment and ending on his next following Severance from Service
Date. Years of Service shall include the period of time between an Employees
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.
12.
<PAGE> 15
ARTICLE 2: ELIGIBILITY AND PARTICIPATION
2.01 ELIGIBILITY: Each Employee shall be eligible to become a
Participant in the Plan as follows:
(a) Each Employee who was employed and had completed one Year of
Service on December 31, 1985 or a subsequent December 31 shall
be eligible for the Payroll-based Employee Stock Ownership
Contributions under Section 4.03;
(b) Each Employee who was employed on June 23, 1986 shall be
eligible for the Initial Company Contribution under Section
4.02 on the later of September 1, 1986 or the Enrollment Date
after he has completed one Year of Service;
(c) Each Employee shall be eligible for Participant Contributions
under Article 3 and Employer Matching Contributions under
Section 4.01 on the later of September 1, 1986 or any
Enrollment Date after he has completed one Year of Service;
(d) Each Employee transferred from salaried status shall be
eligible to make a Plan to Plan Transfer into this Plan at
any time.
2.02 PARTICIPATION: Each Eligible Employee shall become a
Participant as follows:
(a) With respect to the Payroll-based Employee Stock Ownership
Contribution an Eligible Employee shall automatically become a
- Participant as of December 31, 1985 or a subsequent December
31 on which he first becomes eligible to receive such
contribution;
(b) An Eligible Employee shall become an Active Participant as of
September 1, 1986 or any Enrollment Date thereafter, 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, makes
investment elections,and names a Beneficiary 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.
13.
<PAGE> 16
(c) With respect to a Plan to Plan Transfer Contribution an
Employee shall automatically become a Participant at the time
of transfer.
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 salaried status
or to the payroll of an Affiliated Company which is not an
Employer.
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;
(b) If the Employee was previously a Participant in the Plan and
(i) did not incur one Year of Break in Service, (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;
14.
<PAGE> 17
(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
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.
15.
<PAGE> 18
ARTICLE 3: PARTICIPANT CONTRIBUTIONS
3.01 BASIC TAX-DEFERRED EMPLOYEE CONTRIBUTIONS: Each Active
Participant may elect to make Basic Tax-Deferred Employee Contributions to the
Plan. The rate of such Contribution shall be 1%, 2%, 3%, 4%, 5% or 6% of the
Participant's Earnings.
3.02 SUPPLEMENTAL TAX-DEFERRED EMPLOYEE CONTRIBUTIONS: Each Active
Participant who is making contributions of 6% of Earnings under Section 3.01
may elect to make Supplemental Tax-Deferred Employee Contributions to the Plan.
The rate of such contributions shall be 1%, 2%, or 3% of the Participant's
Earnings.
3.03 NON TAX-DEFERRED EMPLOYEE CONTRIBUTIONS (BASIC AND
SUPPLEMENTAL): Each Active Participant may elect to make Basic Non Tax-
Deferred Employee Contributions to the Plan. The rate of such contributions
shall be 1%, 2%, 3%, 4%, 5%, or 6% of the Participant's Earnings. Each Active
Participant who is making Basic (Tax-Deferred or Non Tax-Deferred) Employee
Contributions of 6% of Earnings may make Supplemental Non Tax-Deferred Employee
Contributions to the Plan (which may be made in addition to Supplemental
Tax-Deferred Employee Contributions). The rate of such contributions shall be
1%, 2%, 3%, 4%, 5%, or 6% of Earnings. The total of a Participant's
contributions may not exceed 15% of Earnings.
3.04 MODE OF PAYMENT: Basic Tax-Deferred Employee Contributions,
Supplemental Tax-Deferred Employee Contributions, and Non Tax- Deferred
Employee Contributions shall be made by means of payroll deductions for each
payroll period. Contributions shall be accrued by the Employer from a
Participant's earnings at the rate designated by the Participant, credited to
the applicable Accounts for such payroll period, and paid to the Trustee
promptly, and, in any event, no later than 30 days after the end of the plan
year with respect to which such contributions are made.
3.05 LIMITATION ON CONTRIBUTIONS: In accordance with applicable
regulations, and notwithstanding any other provision in the Plan relating to
Tax-Deferred Contributions, Company Contributions or Supplemental Non-Tax
Deferred Employee Contributions, the provisions of this Section shall control.
(a) Definitions: For purposes of this Section, the following
terms shall have the meaning set forth hereafter:
i. "Actual Deferral Percentage" has the meaning defined
in Code section 401(k)(3)(B).
ii. "Contribution Percentage" has the meaning defined in
Code section 401(m)(3).
16.
<PAGE> 19
iii. "Elective Deferrals" has the meaning defined in Code
section 402(g)(3).
iv. "Excess Aggregate Contributions" has the meaning
defined in Code section 401(mt(6)(B).
v. Excess Contributions" has the meaning defined in Code
section 401(k)(8)(B).
vi. "Excess Deferral" has the meaning defined in Code
Section 402(g)(2), but excluding amounts described in
section 1105(c)(5) of the Tax Reform Act of 1986.
vii. "Highly Compensated Employee" has the meaning defined
in Code Section 414(q).
viii. "Matching Contributions" has the meaning defined in
Code section 401(m)(4)(A).
ix. "Qualified Nonelective Contributions" has the meaning
defined in Code section 401(m)(4)(C).
(b) Individual Limitation: The amount of Elective Deferrals for a
Participant for his taxable year shall be limited to $7,000
(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 above, such Excess
Deferrals shall be distributed to him no later than the 15th
day of April 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 the Excess Deferrals allocated to
this Plan. Such amount (including income thereon) shall then
be distributed to the Participant no later than the following
April 15th.
(c) Before-Tax Contribution Limitation: For each Plan Year
beginning after December 31, 1986, the Actual Deferral
Percentage for the group of eligible Highly Compensated
Employees shall bear a relationship to the Actual Deferral
Percentage for all other eligible employees that meets either
of the following tests:
17.
<PAGE> 20
i. The Actual Deferral Percentage for the group of
eligible Highly Compensated Employees is not more
than the Actual Deferral Percentage of all other
eligible Employees multiplied by 1.25; or
ii. The excess of the Actual Deferral Percentage for the
group of eligible Highly Compensated Employees over
that of all other eligible employees is not more than
2 percentage points, and the Actual Deferral
Percentage for the group of eligible Highly
Compensated Employees is not more than the Actual
Deferral Percentage of all other eligible employees
multiplied by 2.
For purposes of computing the Actual Deferral Percentages, the
employer contributions on behalf of any Participant shall
include:
i. Any employer contributions made pursuant to the
Participant's election; and
ii. At the election of the Company, Matching
Contributions that meet the withdrawal and
nonforfeitability restrictions of Code section
401(k)(2)(B) and (C), and/or Qualified Nonelective
Contributions.
For purposes of applying the provisions of this subsection,
the Actual Deferral Percentage taken into account for any
Highly Compensated Employee who is a Participant in two or
more cash or deferred arrangements of the Employer or
Affiliated Company shall be the sum of the elective deferrals
for that Employee under each 401(k) plan of the Employer or
Affiliated Company, divided by the Participant's compensation
from the Employer and Affiliated Company.
Except to the extent provided under regulations or rules of
the Secretary of the Treasury, notwithstanding the
distribution of any portion of an Excess Deferral under
subsection (b) hereof, such portion shall, for purposes of
applying this subsection (c), be treated as an Employer
contribution.
(d) Company and Supplemental Contribution Limitation: For each
Plan Year beginning after December 31, 1986, the Contribution
Percentage for eligible Highly Compensated Employees shall not
exceed the greater of:
i. 125 percent of the Contribution Percentage for all
other eligible Employees; or
18.
<PAGE> 21
ii. The lesser of 200 percent of the Contribution
Percentage for all other eligible Employees, or the
Contribution Percentage for all other eligible
Employees plus 2 percentage points.
If two or more plans of the Employer to which Matching
Contributions, 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 a Highly Compensated Employee participates in two or more
plans of the Employer to which such contributions are made,
all such contributions shall be aggregated.
Any Employee who is eligible to make an Employee contribution
(or, if the Employer takes elective contributions into
account, elective contributions) or to receive a Matching
Contribution shall be considered an eligible Employee. In
addition, if an Employee contribution is required as a
condition of participation in the Plan, any Employee who would
be a Participant in the Plan if such Employee made such a
contribution shall be treated as an eligible Employee on
behalf of whom no Employer contributions are made.
For purposes of computing the Contribution Percentages, the
Employer may elect to take into account Elective Deferrals
and/or Qualified Nonelective Contributions allocated to a
participant's account under the Plan or any other plan it
sponsors.
The Plan shall be treated as satisfying the requirements of
Subsections (c) and (d) hereof for any Plan Year if, before
the close of the following Plan Year, (i) the amount of the
Excess Contributions and Excess Aggregate Contributions for
such Plan Year (and any income allocable to such
Contributions) is distributed to the Participant, (ii) in the
case of Excess Contributions, to the extent provided 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 Aggregate Contributions, to the extent such
Contributions are forfeitable, are forfeited.
3.06 CHANGE IN AMOUNT OF CONTRIBUTIONS: Subject to the provisions
of Section 3.05, a Participant may change the rate of his Basic Tax-Deferred
Employee Contributions and/or Supplemental Tax-Deferred Employee Contributions.
Subject to the provisions of Section 3.05, a Participant may change
the rate of his Non Tax-Deferred Employee Contributions.
19.
<PAGE> 22
Such changes may be effective as of any Enrollment Date, if the
Participant has provided prior written notice to the Employer on a form
provided by the Plan Administrator within the time period prescribed by the
Plan Administrator.
3.07 VOLUNTARY SUSPENSION OF PARTICIPANT CONTRIBUTIONS: A
Participant may suspend his Basic Tax-Deferred Contributions, Supplemental
Tax-Deferred Contributions, and/or Non Tax-Deferred Contributions as of the
last day of any month by giving prior notice to the Employer within the time
period prescribed by the Plan Administrator. A suspension of Basic
Tax-Deferred Contributions will automatically suspend Supplemental Tax-Deferred
Contributions. Suspension of contributions must be for a period of not less
than six months. The Participant may resume making contributions as of any
Enrollment Date which is at least six months after the date of the suspension
(or commenced by giving prior written notice to the Employer within the time
period prescribed by the Plan Administrator).
3.08 PLAN TO PLAN TRANSFER: Balances may be transferred into the
Plan, with the consent of the Plan Administrator, if the amount transferred is
from the Bowater Incorporated Salaried Employees' Savings Plan, the Bowater
Southern Hourly Employees' Profit-Sharing Plan, the Bowater Communication
Papers Incorporated Employees' Savings Plan, the Great Northern Paper, Inc.
Savings and Capital Growth Plan, the Great Northern Paper, Inc. Hourly 401(k)
Savings Plan, or such other tax-qualified plan as may be approved by the Plan
Administrator. Transfers under this Section shall be subject to the applicable
restrictions of Article 8 but shall not be subject to the limitations of
Sections 3.04, 4.07, or 4.08; nor shall amounts transferred under this Section
be included in the calculation of the Participant's rate of Basic or
Supplemental Contributions (Tax-Deferred or Non Tax-Deferred) pursuant to
Sections 3.01 through 3.04.
The balance transferred shall be treated as follows:
(i) The portion attributable to pre-tax contributions
pursuant to Section 401(k) of the Code shall be
credited to the Employee's Supplemental Tax-Deferred
Employee Contribution Account;
(ii) The portion attributable to after-tax contributions
pursuant to Section 401(a) of the Code shall be
credited to the Employee's Supplemental Employee
Contribution Account;
(iii) The portion attributable to Employer matching
contributions pursuant to Section 401(a) of the Code
shall be credited to the Employee's Company
Contribution Account. The Plan Administrator shall
require the Employee to furnish a written statement
20.
<PAGE> 23
containing such information as may be necessary to establish that the
transfer does not contain amounts from sources other than provided
above and that the transfer otherwise meets the requirements of law.
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's prior and concurrent service with
an Affiliated Company which is not an Employer, or as a leased employee (within
the meaning of Code Section 414(n)) if the Company or Affiliated Company is the
recipient of such service, shall be counted for Years of Service to the extent
such credit has been given under Section 2.05 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.
3.10 ROLLOVER CONTRIBUTIONS: An Employee, whether or not a
Participant, may request the Plan 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 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 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 402(a)(5) of the Code
21.
<PAGE> 24
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.
Any amounts transferred into this Plan under this Section shall be by
check. No securities may be contributed. The Employee shall make application
to the Plan Administrator in writing, submitting whatever information is deemed
necessary and sufficient by the Plan Administrator to establish compliance with
the requirements of this Section 3.10. Amounts accepted by the Plan
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 Supplemental Tax-Deferred Employee Contribution Account.
22.
<PAGE> 25
ARTICLE 4: EMPLOYER CONTRIBUTIONS
4.01 MATCHING CONTRIBUTIONS: With respect to each Active
Participant in its employ, the Employer shall contribute to the Plan from its
Current or Accumulated Profits an amount equal to 40% of such Participant's
Basic Employee Contributions (Tax-Deferred and/or Non Tax-Deferred) accrued
for the corresponding pay period. Contributions by the Employer shall be paid
to the Trustee promptly and credited to each Participant's Hatching Company
Contribution Account. Effective January 1, 1995, the Matching Contribution
percentage shall increase from 40% to 50%.
4.02 INITIAL COMPANY CONTRIBUTIONS: With respect to each Employee
as of June 23, 1986, the Employer shall contribute to the Plan from its current
or accumulated profits an amount sufficient to purchase fifty (50) Shares of
Company Stock. Such Contributions shall be made as of the first business day
of the quarter after the Employee is first eligible for participation under
Section 2.01(b). There shall be no Initial Company Contributions for
individuals who first become Employees after June 23, 1986. Such Contributions
shall be paid to the Trustee promptly and credited to each Participant's
Initial Company Contribution Account.
4.03 PAYROLL-BASED EMPLOYEE STOCK OWNERSHIP CONTRIBUTIONS: For
each calendar year, beginning in 1985, the Employer shall contribute to the
Trust Fund out of Current or Accumulated Profits, an amount equal to a
percentage of the aggregate (W-2) compensation paid to Employees who are, or
would have been, eligible for participation under Section 2.01(a) of Article 2
during the Plan Year, or as of the subsequent January 1, and who have not
terminated Employment as of the end of such Plan Year. Such percentage shall
be determined in accordance with the following table, less the amount of any
reduction in such credit for a prior Plan Year due to a final determination of
such credit which is not taken into account in any deduction under Section
404(i)(h)(2) of the Code (or to the maximum extent permitted by law):
<TABLE>
<CAPTION>
Calendar Percentage
Year Aggregate Compensation
-------- ----------------------
<S> <C>
1985 0.50
1986 0.50
1987 0.50
1988 or thereafter 0.00
</TABLE>
4.04 MODE OF PAYMENT: Employer contributions under Sections
4.01 and 4.02 shall be made in cash.
Employer Contributions under Section 4.03 may be paid in Shares of
Company Stock, cash or both. The amount contributed in
23.
<PAGE> 26
Shares of Company Stock shall be determined by averaging the closing prices of
such Shares of Company Stock on the New York Exchange consolidated tape for the
20 consecutive trading days immediately preceding the date of transfer of such
Shares of Company Stock to the Trust Fund and multiplying the average value so
determined by the number of Shares of Company Stock transferred to the Trust
Fund. Such contributions will be made within thirty (30) days following the
due date, including extensions, for filing the Federal income tax return for
the year which coincides with such Plan Year.
Promptly upon receipt of any cash contribution pursuant to Section
4.03, the Trustee shall apply such contribution to the purchase, in one or more
transactions, of the maximum number of whole Shares of Company Stock obtainable
at the then prevailing prices, including brokerage commissions and other
reasonable expenses incurred in connection with such purchases. Such purchases
shall be made as directed by the Committee (i) privately from the Company or
from another person or (ii) on any securities exchange where Shares of Company
Stock are traded or (iii) pursuant to Section 7.06; and shall be on such terms
as to price, delivery and otherwise as the Trustee may determine to be in the
best interest of the Participants. No purchase of Shares of Company Stock
shall be made from the Company at a price in excess of the fair market value of
such Shares on the date of purchase, which shall be the highest sales prices of
the Shares as reported in The Wall Street Journal report of NYSE-Composite
Transactions, on the investment date as of which such purchase is made (or the
next preceding day on which such Shares are traded on the New York Stock
Exchange, if the Shares are not traded on the New York Stock Exchange on the
investment date). After receipt of any cash contributions under Section 4.03
the Trustee shall use the cash to acquire Shares of Company Stock no later than
the 30th day following receipt of the contribution by the Trustee, having due
regard for any applicable requirement of law.
Any cash balance of any contribution received pursuant to Section 4.03
which shall remain after the maximum number of whole Shares shall have been
purchased pursuant to this Section 4.04, shall (unless forming a part of the
cash reserve established pursuant to Section 6.02) be held by the Trustee for
the purpose of being invested when the next such investment is made by the
Trustee.
4.05 FORFEITURES: The amount of any Forfeitures under Section 7.04
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. In the event that the amount of Forfeitures exceeds the amount of
Employer contributions, Forfeitures shall be kept in a suspense account until
such Forfeitures, increased by the Earnings thereon and reduced by the losses
thereon, if any, are applied pursuant to this Section 4.05.
24.
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4.06 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 of 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;
(c) Any contribution made by an Employer with respect to any Plan
Year for which the Plan was not a qualified plan, as described
under Section 11.10.
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.
4.07 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, 4.02, and 4.03; and
2. Basic Tax-Deferred Employee
Contributions allocated to the
Participant's Accounts under Section
3.01 and Supplemental Tax-Deferred
Employee Contributions allocated to
the Participant's Accounts under
Section 3.02; and
25.
<PAGE> 28
3. Basic and Supplemental Non
Tax-Deferred Employee Contributions
allocated to the Participant's
Accounts under Section 3.03
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)(l)(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, as reported
on his Form W-2.
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 Basic
and/or Supplemental Employee Tax-Deferred
Contributions for the Plan Year;
ii. Discontinue or reduce the Participant's Basic
and/or Supplemental Non Tax-Deferred Employee
Contributions for the Plan Year;
iii. Instruct the Trustee to return all or a
portion of the Participant's Supplemental
Tax-Deferred or Non Tax-Deferred Employee
Contributions made during the Plan Year;
iv. Instruct the Trustee to return all or a
portion of the Participant's Basic Tax-
26.
<PAGE> 29
Deferred Employee Contributions made during
the Plan Year;
v. Instruct the Employer to reduce or eliminate
its Matching Contributions to the
Participants Accounts for the remainder of
the Plan Year;
vi. Instruct the Trustee to return to the
Employer all or a portion of the Matching
Contributions made to the Participants
Accounts for the Plan Year;
vii. Apply any amounts in excess of such
limitations ("excess amounts") for a
Participant to reduce Matching 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, then such excess
amounts shall be held unallocated in a
suspense account for the Plan Year and
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 4.07 being exceeded for any
Participant for the Plan Year. Any excess
amounts not allocated to Participants in the
preceding sentences of this subsection (vii)
shall be used to reduce Matching
Contributions for the next Plan Year (and
succeeding Plan Years, as necessary) for all
of the Participants in the Plan.
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 provision.
4.08 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
27.
<PAGE> 30
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 Participant's 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 data the terms "earnings", "service",
"normal retirement date", and "break in service" shall have the same meaning as
defined in such retirement plans.
28.
<PAGE> 31
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 COMPANY STOCK FUND (FORMERLY FUND B.): A fund which invests
primarily in shares of Company 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 Company 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 Company Stock allocable to
(1) Payroll-Based Employee stock Ownership Contributions, (2) Initial
Company Contributions, and Employee Contributions (whether Basic or
Supplemental, Tax-Deferred or Non Tax-Deferred).
ADDITIONAL INVESTMENT FUNDS: There shall be established by the
Trustee at the direction of the Company 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 Board 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 Board 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 (other than
29.
<PAGE> 32
contributions under Section 4.02 and 4.03) 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.) Basic and
Supplemental Tax-Deferred and Non Tax-Deferred Employee Contribution Accounts,
a Matching Company Contribution Account, and when required, a Rollover
Contribution Account shall be established for the Participant in each
Investment Fund in which contributions are (of that type) 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 (other than contributions under Section 4.02 and 4.03)
received thereafter. Changes in Investment elections must be expressed as
revised whole number percentages of Contributions, totalling 100%.
5.04 TRANSFER 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).
The Plan Administrator may authorize changes in investment options as
special conditions may warrant and may establish rules and procedures as the
circumstances require to allow such changes in investment options, including a
special valuation of Participants' Accounts.
30.
<PAGE> 33
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 has behalf and the investment accretions
thereon.
6.02 VALUATION OF ACCOUNTS: As of each Valuation Date, the
Accounts of each Participant (other than the Employee Stock Ownership Account)
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 Plan 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 Company Stock
Fund shall be represented by Shares of Company Stock plus the value of any
fractional share(s) which shall be held in cash or may be unitized and
expressed as a cash value, as the Plan Administrator and the 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 Participants' 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.
Employer Contributions under Section 4.03 for a Plan Year which are
represented by Shares of Company Stock contributed to the Plan and/or purchased
by the Trustee with cash contributions shall be allocated to the Employee Stock
Ownership Account of each Employee eligible for participation under Section
2.01 who had not terminated Employment as of the end of such Plan Year, in an
amount, calculated to the nearest thousandth of a share, which is in the same
proportion to the amount of all such shares to be allocated to all such
Employees for that Plan Year as the amount of compensation paid to such
Participant is to the total compensation paid to all eligible Employees,
excluding compensation in excess of $100,000 for any individual.
Any cash dividends received by the Trustee with respect to Shares of
Company Stock held by the Plan shall be invested in additional Shares of
Company Stock. Any Shares of Company Stock purchased from cash dividends plus
any other Shares of Company Stock received as a result of a stock split or a
stock dividend
31.
<PAGE> 34
shall be allocated to the Participant's Company Stock Fund Account(s) in
proportion to the respective Shares of Company Stock credited to such Account
balances as of the appropriate record date.
The Company may establish a cash reserve from Payroll-based Employee
Stock Ownership Contributions transferred in cash equal to an amount not more
than the value of fractional shares allocable to Participants entitled to
receive an immediate distribution at the time of transfer.
6.03 AMOUNT OF PARTICIPANT'S ACCOUNTS: The amount of a
Participant's Accounts for purposes of distribution shall be equal to (a) plus
(b) minus (c):
(a) The value of the Participant's Accounts as of the most recent
Valuation date, plus
(b) The Participant and Employer Contributions made since the most
recent Valuation Date, minus
(c) Any distribution since the most recent Valuation Date.
Notwithstanding the above, the Plan Administrator may in its a
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 Plan 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 a 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.
32.
<PAGE> 35
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
or 7.07 (or, if applicable, under Section 11.07).
7.02 DEATH: Upon the death of 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 and 7.07.
7.03 DISABILITY: Upon termination of Employment of a Participant
by Disability before Retirement, the Vested Value shall be the value of his
Accounts. The Vested Value shall be paid to him in full under Sections 7.06
and 7.07 (or, if applicable, under Section 11.07).
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 a lump sum under
Section 7.06(a)(b) or (c), 7.07, (or, if applicable, under Section 11.07).
The Vested Value of a Participant's Accounts shall include:
(a) His Basic Tax-Deferred Employee Contribution Account;
(b) His Basic and Supplemental Non Tax-Deferred Employee
Contribution Account;
(c) His Supplemental Tax-Deferred Employee Contribution Account;
(d) His Plan to Plan Transfer Account;
(e) His Initial Company Contribution Account and Matching Company
Contribution Account, if the Participant has at least 3 Years
of Service;
(f) His Payroll-Based Employee Stock Ownership Account
Upon such termination of Employment the Participant shall forfeit the
remaining portion of his Initial and/or Matching Company Contribution Accounts;
provided, however, that the Forfeiture shall be reinstated if he is reemployed
by an Employer at any time before he has five Years of Break in Service, and if
he then repays the entire amount of his Basic Tax-Deferred Employee
Contribution Account previously distributed to him, if any.
33.
<PAGE> 36
The Vested Value of such Participant shall be paid to the Participant
in a single sum under Sections 7.06(a) and/or 7.06(c), or, only if the
Participant will have attained age 59-1/2 at the time benefit payments commence
in installments under Section 7.06(b). If such Vested Value is greater than
$3,500, the Participant may elect to defer this distribution until he elects to
take it (or his death, if earlier). All distributions are subject to the
requirements of Section 7.07.
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 FROM HOURLY TO SALARIED EMPLOYMENT: If a Participant
transfers to salaried employment status with an Employer he shall be given the
following options:
(a) To elect a Plan to Plan Transfer of the Vested Value of his
Accounts to the Bowater Incorporated Salaried Employees
Savings Plan, as of any Valuation Date if the trustee of such
plan is authorized to receive such transfer.
(b) To defer such Transfer or the receipt of any distribution
until a later date. Absent any such transfer, his Accounts
will remain in the Plan until Retirement, death, Disability,
or termination of Employment, or, except for the Employee
Stock Ownership Account, until eligible for withdrawal under
Article 8.
If a Participant transfers from hourly status to salaried status in an
Affiliated Company which is not an Employer, his Accounts shall be governed by
Section 7.04. A Participant will receive credit for Years of Service for his
period of employment with the Employer or Affiliated Company.
7.06 ELECTION OF BENEFITS: On or before a Participant's Retirement
he shall notify the Plan Administrator of his election in writing that benefits
due to him upon termination of Employment be paid or made available in
accordance with one or more of the following methods:
(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 life expectancy of
the Participant and his Beneficiary. The amount of each
installment will be determined by
34.
<PAGE> 37
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 Company Stock plus the
cash equivalent of the fair market values of any fractional
Share of Company Stock in the Company Stock Fund, together
with a lump sum cash payment for the Participant's interest 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 case in the Trust.
A Participant may change his election of benefits by filing a new
election at any time prior to his benefit commencement date.
The Participant may elect that the Employee Stock Ownership Account be
paid in kind equal to the full Shares of Company Stock plus the cash equivalent
of the fair market values of any fractional Share of Company Stock. 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 who has previously elected to receive benefits under
Subsection (b) may subsequently apply to the Plan Administrator for a lump sum
distribution in cash. Under such a distribution the Plan Administrator may
permit the Participant to withdraw the total Vested Value of the Participant's
Accounts, determined as of the Comprehensive Valuation Date next preceding the
date on which the Plan Administrator approves the Withdrawal or the
Comprehensive Valuation Date next following the Participant's application for
withdrawal, whichever Comprehensive Valuation Date is later; such amount shall
not include the amount of any installments paid to the Participant since the
preceding Comprehensive Valuation Date. Any residual amounts will be paid to
the Participant following the next Comprehensive Valuation Date.
7.07 METHOD OF PAYMENT: Benefits shall be paid or made available
under the Plan upon the direction of the Plan 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:
35.
<PAGE> 38
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(a) 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 Administrator on a form provided for
such purpose 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
36.
<PAGE> 39
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 Plan 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 Plan Administrator may deem proper, and its
determination of death and of the right of such Beneficiary to receive payments
shall be conclusive. A Beneficiary who does not elect a lump sum payment shall
also designate a Beneficiary on a form provided by the Plan Administrator.
7.09 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:
37.
<PAGE> 40
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)(s)
(relating to the minimum distribution
requirements); or
38.
<PAGE> 41
(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).
39.
<PAGE> 42
ARTICLE 8: WITHDRAWALS
8.01 GENERAL CONDITIONS FOR WITHDRAWALS: A Participant's rights to
his Basic Tax-Deferred Employee Contribution Account, Supplemental Tax-Deferred
Employee Contribution Account, Basic and Supplemental Tax-Deferred Employee
Contribution Account(s), Employee Stock Ownership Account, Rollover
Contribution Account and Plan to Plan Transfer Account shall be nonforfeitable
at all times.
Any distribution under this Section may be 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 regulations thereunder and in accordance with the procedures
described in Section 7.09 of the Plan.
Subject to the conditions set forth in the subsequent sections of this
Article, upon written notice to his Employer on a form provided by the Plan
Administrator for such purpose, a Participant may make withdrawals of the
Vested Value of the types of Accounts hereinafter specified (excluding assets
attributable to Payroll-Based Employee Stock Ownership Contributions at any
time prior to their availability for distribution).
All amounts withdrawn must 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 from each Fund 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.
No withdrawals may be made under this Article 8 from a Participant's
Basic Tax-Deferred Employee Contribution Account, or Supplemental Tax-Deferred
Employee Contribution Account except pursuant to the provisions of Sections
8.04 and 8.05 hereof.
8.02 WITHDRAWAL OF INITIAL AND MATCHING COMPANY CONTRIBUTION
ACCOUNTS: A Participant may withdraw all or a portion of the Vested Value of
his Initial Company Contribution Account and/or his Matching Company
Contribution Account, excluding any contributions made to such accounts within
the two years preceding the withdrawal, determined as of the next Valuation
Date. Contributions made within two years 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.
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A Participant who has made a withdrawal under this Section may not
make Non Tax-Deferred Employee Contributions (Basic or Supplemental) for a
period of six months following the withdrawal. No suspension of Tax-Deferred
Employee contributions is required by reason of a withdrawal under this Section.
The Participant may resume making Non Tax-Deferred Employee contributions on
any Enrollment Date following the expiration of the six month suspension period
at such time and upon the giving of such notice (if any) to the Employer prior
to such date and within such time period as the Plan Administrator shall
prescribe.
Not more than one withdrawal may be made under this Section during any
Plan Year.
8.03 WITHDRAWAL OF BASIC NON TAX-DEFERRED EMPLOYEE CONTRIBUTION
ACCOUNT AND SUPPLEMENTAL NON TAX-DEFERRED EMPLOYEE CONTRIBUTION ACCOUNT:
(a) A Participant may withdraw all or a portion of the Vested
Value of his Basic Non Tax-Deferred Employee Contribution
Account. Not more than one withdrawal may be made under this
subsection during any Plan Year.
A Participant who has made a withdrawal under this Section may
not make Non Tax-Deferred Employee Contributions (Basic or
Supplemental) for a period of six months following the
withdrawal. No Suspension of Tax-Deferred employee
contributions is required by reason of a withdrawal under this
Section. The Participant may resume making Non Tax-Deferred
Employee contributions on any Enrollment Date following the
expiration of the six month suspension period at such time and
upon the giving of such notice (if any) to the Employer prior
to such date and within such time period as the Plan
Administrator shall prescribe.
(b) A Participant may make a withdrawal from his Supplemental Non
Tax-Deferred Employee Contribution Account, determined as of
the next Valuation Date. No suspension of contributions is
imposed on a Participant who makes a withdrawal under this
subsection. Not more than one withdrawal may be made under
this Section during any Plan Year.
8.04 SPECIFIED HARDSHIP WITHDRAWAL: A Participant 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 Basic Tax-Deferred Employee Contributions, Supplemental Tax-Deferred
Employee Contributions, and investment return accrued as of December 31, 1988
on his Tax-Deferred Accounts.
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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 Basic Tax-Deferred Employee
Contributions and Supplemental Tax-Deferred Employee Contributions made since
the applicable Valuation Date and shall not include the amount of any
withdrawals 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 3.05 hereof for that Plan Year, reduced by the Tax-Deferred
Contributions made by the Participant in the Plan Year in which the withdrawal
occurs.
8.05 WITHDRAWAL AFTER AGE 59-1/2: A Participant who has attained
age 59-1/2 may make a withdrawal under the provisions of Section 8.04 without
satisfying the conditions of that Section for a Specified Hardship. Upon such
a withdrawal, the Participant shall not incur a Mandatory Suspension.
8.06 WITHDRAWAL OF EMPLOYEE STOCK OWNERSHIP CONTRIBUTIONS: A
Participant may not withdraw any amounts attributable to these Contributions
while Employed.
8.07 WITHDRAWAL OF PLAN TO PLAN TRANSFER ACCOUNT: A Participant
may withdraw amounts from this Account under the provisions of Sections 8.04
and 8.05.
8.08 WITHDRAWAL OF ROLLOVER ACCOUNT: A Participant who has made a
Rollover Contribution under Section 3.10 may withdraw the total value of his
Rollover Account at any time.
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ARTICLE 9: ADMINISTRATION
9.01 FIDUCIARIES:
(a) The following parties are Fiduciaries of the Plan:
i. The Employer;
ii. The Trustee; and
iii. Any committee(s) or individual(s) appointed by the
Employer 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 Savings Committee shall function as
the Administrator until a Plan Administrator (or successor, as
appropriate) is appointed.
(d) The responsibilities of each Fiduciary may be specified in the
Plan or by the Employer and accepted in writing by each
Fiduciary. If no such delegation is made in the Plan or by
the Employer, the Fiduciaries may allocate responsibilities
among themselves in writing and notify the Employer 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 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 EMPLOYER: The Employer shall have the
following powers and duties with respect to the Plan;
(a) to appoint the members of any committee created to exercise
any responsibility with respect to the Plan;
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<PAGE> 46
(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, Committees or entity 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 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 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
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;
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<PAGE> 47
(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 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 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 Board or its designee.
9.05 DELEGATION OF DUTIES: Any committee established by the
Employer or at its direction or by its designee may appoint subcommittees and
determine their powers; and the Employer 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 Board.
The Employer, the Administrator and their respective designees,
agents, officers and employees and any committee(s) established by the Employer
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 Employer, the Administrator, and their
respective designees, agents, officers and employees and any committee(s)
established by the Employer 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
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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 Employer, a majority of the members of any committee(s)
established by or at the direction of the Employer 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 Employer 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 Employer 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 Employer, notify the
Employer of the commencement thereof, and the omission so to notify the
Employer will relieve it from the liability hereunder, but not from any other
liability which it may have to such person. The Employer 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 Employer 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
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<PAGE> 49
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.
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ARTICLE 10: SAVINGS COMMITTEE
10.01 COMMITTEE: A Pension Administration Committee or a committee
appointed by or at the direction of the Board with responsibility for oversight
of the administration of this Plan shall appoint a Savings Committee consisting
of not less than five persons, two of whom shall be employees who are elected
or appointed by their Local Unions. Such persons shall be fiduciaries of the
Plan who jointly shall have the authority to control and manage the operation
and administration of the Plan (but shall not have authority to control and
manage the assets of the Plan, which authority is reserved for the Trustee
under Section 10.13). All members of the Committee shall be appointed for a
term of one year, continuing thereafter on a year-to-year appointment or until
their successors have been appointed. Persons appointed to the Committee shall
indicate their willingness to serve by filing a written consent with the PAC.
Committee members may resign upon 45 days' written notice to the PAC (or on
such shorter notice as is acceptable to the PAC) and may be removed by the PAC
during their term of office only if, in its sole discretion, the PAC should
determine that the member has failed to or is unable to perform the duties of
the office in an efficient manner. The PAC, or the Local Unions, as
applicable, shall have the power to fill vacancies on the Committee created by
resignation, removal, disability, or death.
10.02 COMMITTEE POWERS: The Committee shall have the power to
construe and interpret the provisions of the Plan; to determine any questions
of fact under the Plan, including questions relating to eligibility, earnings,
service, entitlement to benefits, and the form of benefits, of any person under
the Plan; and to exercise its discretion with respect to all matters reserved
for the Committee or the Company under the Plan but excluding, however, any
matters relating to (a) the Trustee or the Trust Agreement and the amendment,
modification or termination thereof; (b) the amendment or termination of the
Plan. Such matters are reserved to and specifically require action by the
Board, and, in the case of matters solely affecting an Employer other than the
Company, by such other Employer's board of directors; and the Committee shall
have no obligation or responsibility with respect to such matters.
10.03 DESIGNATION AND ALLOCATION OF FIDUCIARY RESPONSIBILITIES: The
Committee shall have the power to designate one or more persons, other than
members of the Committee, to carry out fiduciary responsibilities under the
Plan (other than trustee responsibilities defined in ERISA Section 405(c)(3)).
Any such designation shall be in writing, naming the person so designated and
describing the terms of the delegation and the fiduciary responsibility so
allocated and such designation shall be accepted in writing by the person so
designated. Each such designation or allocation shall provide that it is
terminable by the Committee upon reasonable notice to the person so designated.
Without
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<PAGE> 51
limiting the Committee's authority to designate and allocate, the Committee may
delegate to one or more persons the authority: (a) to determine the amount of
the benefits due to any person; (b) to maintain books and records of the Plan
and accounts necessary to show the fiscal transactions of the Plan; (c) to
order, direct or authorize the distribution of Plan benefits to any person, and
to determine their form; and (d) to prepare, furnish and hold such forms as are
necessary in the operation of the Plan, including without limitation,
beneficiary designation and option elections.
10.04 REVIEW OF FIDUCIARY RESPONSIBILITY DESIGNATIONS OR ALLOCATIONS:
Each designation or allocation made under Section 10.03 shall also provide that
the Committee shall meet periodically with the person or persons to whom the
delegation was made to review the performance of the person to whom duties have
been delegated. This review, which may be conducted by all Committee members
or by a designated review subcommittee, will permit the Committee to determine
whether or not it should continue the allocation or designation.
10.05 SERVICE IN VARIOUS CAPACITIES: Any person may serve as a
fiduciary (within the meaning of ERISA) in addition to being an officer,
employee, agent or other representative of a party-in-interest, and any person
or persons may serve in more than one fiduciary capacity with respect to the
Plan, including service as member of the Committee, Administrator, or Trustee.
10.06 RULES AND REGULATIONS: The Committee shall have the power to
establish rules and regulations for the Plan as well as for the conduct of its
affairs, including without limitation, selecting a Chairman, a Secretary (who
need not be a Committee member), and subcommittees with such powers as the
Committee shall determine and authorizing one or more members of the Committee
to sign any document, instrument or order on behalf of the Committees. A
majority of the Committee will constitute a quorum. The Committee is
authorized to employ or retain actuaries, accountants, counsel and other
consultants and to employ clerical help to advise and/or assist the Committee
in fulfilling its responsibilities under the Plan, under ERISA, or under the
Code. The reasonable fees of such consultant and/or other expenses of the
Committee may be paid by the Employers. The members of the Committee shall
serve without compensation.
10.07 REPORTS TO PAC: The Committee shall report at least annually to
the PAC (or a specially appointed review subcommittee of the PAC) to permit the
PAC to review the performance of the Committee and of the person or persons to
whom the Committee has delegated and allocated fiduciary responsibilities.
10.08 REVIEW OF PLAN'S FINANCIAL REQUIREMENTS: Immediately upon its
appointment and at least annually thereafter, the Committee shall review the
Plan's short-run and long-run financial
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needs and its liquidity. On the basis of these and other considered factors,
the Committee shall formulate a Funding Policy which it shall communicate to
the Trustee(s). The Trustee(s) responsible for investments of the Trust
Fund--shall provide the method for carrying out Plan objectives by
appropriately coordinating investment policy with Plan needs. The Committee
shall periodically report to the Board on the Funding Policy of the Plan. The
provisions of this section shall not apply to that portion of the trust Fund
consisting of assets subject to the investment directions of Participants (or
during periods in which all assets in the Trust Fund are either invested
pursuant to provisions of the Plan or pursuant to Participant directions).
10.09 PLAN ADMINISTRATOR: The PAC shall appoint a Plan Administrator
(the "Administrator") who shall be responsible for and shall discharge all
duties and obligations imposed on a plan' administrator by ERISA and the Code.
He 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 Administrator
may sign, on behalf of the Plan, any registration statements and amendments
thereto to be filed with the Securities and Exchange Commission with respect to
the Plan. The Administrator shall be agent for the service of legal process
upon the Plan. The Administrator shall be appointed for a term of one year
and, on the expiration of such term, may be reappointed for a succeeding term
or terms. The Administrator may (but need not) be a member of the Committee or
an Employee of the Company. The person appointed as Administrator shall
indicate his willingness to serve by filing a written consent with the PAC.
The Administrator may resign upon 45 days' written notice to the PAC (or on
shorter notice acceptable to the PAC) and may be removed by the PAC during his
term of office if, in its sole discretion, the PAC should determine that he has
failed or is unable to perform the duties of the office in an efficient manner.
The PAC shall have the power to fill a vacancy created by the resignation,
removal or death of the Administrator. The Administrator may employ counsel
and/or consultants to render advice with regard to any responsibility of the
Administrator under the Plan and may employ necessary clerical help. The
Employer or the Plan may pay the reasonable fees of actuaries, accountants,
counsel, or other consultants, the expenses of clerical help, and/or other
necessary and proper expenses of the Administrator incurred in fulfilling his
responsibilities as Plan Administrator. The Administrator shall report to the
Committee at least quarterly in order that the Committee may review the
Administrator's performance of his duties.
10.10 STANDARDS OF CONDUCT: Plan fiduciaries, as described in ERISA,
shall discharge their duties and responsibilities in accordance with the
standards of care and prudence required under that law. To the extent
permitted by law, including ERISA, the Company shall indemnify any director,
officer or employee who is
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held to be a fiduciary of the Plan against any liability or loss, including
legal expenses, occurring by reason of any act or omission of such fiduciary.
The Company may purchase insurance to cover any such fiduciary of the Plan for
liability or losses, including legal expenses, occurring by reason of the act
or omission of the fiduciary. Absent gross negligence or knowing and willful
misconduct, persons acting for or on behalf of the Plan (including but not
limited to, the Company, the PAC, the Board, members of the Committee, the Plan
Administrator and the Trustee) shall not be subject to civil liability under
any provision of State, County, or Local law pertaining to the conduct of
fiduciaries or trustees or to the permissibility of their investments.
10.11 CHANGES IN COMMITTEE DUTIES: The powers, duties, and
responsibilities of the Committee may be changed by the Board only upon written
consent of the Committee.
10.12 TRUST FUND: All the funds of the Plan shall be held by the
Trustee appointed from time to time by the Company, in one or more trusts under
a Trust Agreement or Agreements approved or authorized by the Board for use in
providing the benefits of the Plan.
10.13 EXCLUSIVE BENEFIT OF PARTICIPANTS AND BENEFICIARIES: No part of
the corpus or income of the Trust Fund shall be used for, or diverted to,
purposes other than for the exclusive benefit of Participants and Beneficiaries
of the Plan (except however, contributions which may be returned to the
Employer under Section 4.06).
10.14 INVESTMENT MANAGER: The Committee may appoint one or more
investment managers (collectively "Investment Manager") with authority and
discretion to manage, acquire and dispose of all or any part of the assets of
the Trust Fund. The Investment Manager shall execute a written agreement, in
form and substance approved by the Committee, detailing the Investment
Manager's responsibilities and specifying the Plan assets which the Investment
Manager shall manage and control. The Investment Manager shall not have
physical custody or control of any assets of the Plan, which shall be held by
the Trustee. The Investment Manager shall be either: (a) a corporation or
partnership registered as an investment adviser under the Investment Advisers
Act of 1940; (b) a bank, as defined in that Act; or (c) an insurance company
qualified to manage, acquire or dispose of any asset of an employee benefit
pension plan under the laws of more than one state. The Investment Manager
shall acknowledge in writing that it is a fiduciary with respect to the Plan.
10.15 CONFLICTING/AMBIGUOUS PROVISIONS: If there is conflict between
or ambiguity created by the provisions of this Article and those of Article 9
with respect to the allocation of powers and
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duties among fiduciaries, and particularly with respect to the powers and
duties of the Savings Committee vis a vis any other fiduciary, the provisions
of this Article shall prevail unless or until such conflict or ambiguity is
resolved or clarified by a Savings Committee delegation or allocation of powers
and duties.
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ARTICLE 11: GENERAL PROVISIONS
11.01 INALIENABILITY OF BENEFITS: Except as required under a
Qualified Domestic Relations Order (as defined under Section 414(p) of the
Code) or other Federal Law, no benefit under the Plan shall be subject in any
manner to anticipation, alienation, sales transfer, assignment, pledge,
garnishment, encumbrance or change, and any attempt to do so shall be void.
The Committee shall comply with such Order. However, the amount and form of
benefits provided by the Plan shall not be altered by such Order.
11.02 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.
11.03 UNIFORM ADMINISTRATION: Whenever in the administration of the
Plan any action is required by the Plan 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.
11.04 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.
11.05 CONSTRUCTION: The Plan shall be construed, regulated and
administered in accordance with the laws of the State of Connecticut 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.
11.06 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 4.04 and applied to reduce future Employer contributions under
the Plan; provided, however, that such Employer shall restore the amount so
applied if and when the same shall be claimed by the Participant or Beneficiary
entitled to receive it.
11.07 DISTRIBUTIONS TO A LEGAL REPRESENTATIVE: If the Plan
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 Plan
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,
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or legal representative of such person. Any payments so made under the
direction of the Plan Administrator shall be a complete discharge of the
liabilities of the Plan therefor.
11.08 EXPENSES: The Plan shall pay all costs and expenses incurred in
administering the Plan, to the extent not paid by the Company. 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 Company shall provide for the allocation of any
fees and expenses it has paid 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.
11.09 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 guarantee the payment of any benefit hereinunder.
11.10 PLAN SUBJECT TO TAX APPROVAL: The adoption of this instant 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 the Code and
regulations issued thereunder with respect to employees' trusts.
In the event of the failure of this instant Plan to receive such
approval, it shall be of no effect with respect to such Employer.
11.11 DISCONTINUANCE OF CONTRIBUTIONS: The Plan is voluntary on the
part of the Employer and Local Unions. Although the Company does not
anticipate terminating the Plan at any point in the foreseeable future, the
Company, the Local Unions, and each other Employer that elects to participate
in the Plan reserves the right, to terminate its participation in the Plan
pursuant to Articles 11 and/or discontinue further contributions by
Participants or the Employer to the Trustee.
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ARTICLE 12: SPECIAL PROVISIONS
12.01 AMENDMENTS TO THE PLAN: Subject to agreement with the Local
Unions, the Board 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; 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
no such amendment 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.
12.02 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 could, 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.
12.03 TERMINATION, PARTIAL TERMINATION, OR DISCONTINUANCE OF
CONTRIBUTIONS: The Plan is maintained pursuant to collective bargaining
agreements and the Company may terminate, or completely discontinue
contributions under the Plan, and terminate the Trust Agreement and the trust
hereinunder only pursuant to those agreements. 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 Committee, in the same manner as on termination of employment under
Section 7.06. 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 4.04 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.
12.04 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
55.
<PAGE> 58
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.
12.05 PROCEDURE: The termination, partial termination or amendment of
this Plan may be effected by the adoption of a resolution by the Board to that
effect, or by the execution of an instrument amending or terminating the Plan
by the designee of the Board, to whom such authority to so act has been given
by resolution of the Board. The authorization of the Board may be general and
need not be given in contemplation of or with reference to specific terms of
amendment or termination.
56.
<PAGE> 59
ARTICLE 13: CLAIMS PROCEDURE
13.01 SUBMISSION OF CLAIMS: Claims for benefits under the Plan shall
be submitted in writing to the Committee or a person designated by the
Committee 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
Committee 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).
13.02 WRITTEN NOTICE OF DENIED CLAIM: The Committee 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.
13.03 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 Committee
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.
13.04 HEARING: Upon receipt of a timely request for review, the
Committee may hold a hearing, or, in its discretion, 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 then
report his (their) findings to the Committee orally or in writing.
13.05 WRITTEN DECISION OF COMMITTEE: A decision of the Committee 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
57.
<PAGE> 60
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.
58.
<PAGE> 61
ARTICLE 14: EXERCISE OF SHAREHOLDER'S RIGHTS
14.01 VOTING RIGHTS: Each Participant shall be entitled to direct the
trustee as to the manner in which the Shares of Company 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 but not less
than thirty (30) days prior to such date, the notification shall include all
information that the company 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 Company 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 company stock allocated to the
account balances of Participants to reflect the directions of the Participants
to whom such fractional Shares of company Stock are allocated.
Neither the Trustees nor the Plan Administrator nor the Committees 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 Company Stock allocated
to his Accounts.
59.
<PAGE> 62
IN WITNESS WHEREOF, BOWATER INCORPORATED has caused this document to
be executed by its duly authorized officers and its corporate seal to be
affixed hereto this 31st day of December, 1994.
BOWATER INCORPORATED
By /s/ Ecton Manning
------------------------------
Vice President General Counsel
ii.
<PAGE> 63
AMENDMENT NO. 1
TO THE BOWATER INCORPORATED CAROLINA DIVISION
HOURLY EMPLOYEES' SAVINGS PLAN
The Bowater Incorporated Carolina Division Hourly Employees' Savings
Plan, As Amended and Restated Effective January 1, 1989 (the "Plan") is hereby
amended, effective January 1, 1996, by adding a new Article 15 which shall read
as follows:
ARTICLE 15:
CHANGE IN CONTROL PROVISIONS
15.01 In the event of a Change in Control, as hereinafter
defined, the provisions of this Article 15 shall supersede any
conflicting provisions in the Plan.
15.02 Anything in this Plan to the contrary
notwithstanding, upon and following a Change in Control the Initial
Company Contribution Account and the Matching Company Contribution
Account of Participants in the Plan who are Employees of the Employer
as of the date of Change in Control shall be 100% vested.
15.03 The following definitions apply for purposes of this
Article 15:
(a) "Acquiring Person" shall mean any Person who is or
becomes a "beneficial owner" (as defined in Rule
13d-3 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of securities of the
Company representing twenty percent (20%) or more of
the combined voting power of the Company's then
outstanding voting securities, unless such Person has
filed Schedule 13G and all required amendments
thereto with respect to its holdings and continues to
hold such securities for investment in a manner
qualifying such Person to utilize Schedule 13G for
reporting of ownership.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act,
as in effect on the date hereof.
(c) "Change in Control" of the Company shall be deemed to
have occurred if:
(i) any Person is or becomes an Acquiring Person;
(ii) less than two-thirds (2/3) of the total
membership of the Board shall be Continuing
Directors; or
iii.
<PAGE> 64
(iii) the shareholders of the Company shall approve
a merger or consolidation of the Company or a
plan of complete liquidation of the Company
or an agreement for the sale or disposition
by the Company of all or substantially all of
the Company's assets.
(d) "Continuing Directors" shall mean any member of the
Board who was a member of the Board prior to the date
hereof, and any successor of a Continuing Director
while such successor is a member of the Board who is
not an Acquiring Person or an Affiliate or Associate
of an Acquiring Person or of any such Affiliate or
Associate and is recommended or elected to succeed
the Continuing Director by a majority of the
Continuing Directors.
(e) "Person" shall mean any individual, corporation,
partnership, group, association or other "person" as
such term is used in Section 13(d) and 14(d) of the
Exchange Act.
15.04 This Article 15 of the Plan shall not be amended upon
or following a Change in Control in any manner that might have the
effect of reducing the Participants' Accounts under the Plan. Nothing
in this Section 15.04 shall be construed to prohibit, prior to a
Change in Control, any amendment to the Plan, including this Article
15, or any termination of the Plan pursuant to its terms.
IN WITNESS WHEREOF, Bowater Incorporated has caused this amendment to
be executed by its duly authorized officer on the 26th day of April, 1996.
BOWATER INCORPORATED
By: /s/ Richard F. Frisch
------------------------------
Richard F. Frisch
Vice President - Human Resources
iv.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS CONSENT
The Board of Directors
Bowater Incorporated
We consent to the use of our report dated February 2, 1996 on the financial
statements of Bowater Incorporated (the Company) for the three-year period
ended December 31, 1995, incorporated herein by reference, which report appears
in the December 31, 1995 annual report on Form 10-K of Bowater Incorporated,
and to our report dated June 16, 1995 on the financial statements of the
Bowater Incorporated Carolina Division Hourly 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.
Greenville, South Carolina
April 29, 1996
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
We, the undersigned directors of Bowater Incorporated, hereby
severally constitute Anthony H. Barash, 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
Incorporated/Carolina Division Hourly 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 pertaining to the Plan
(Registration Statement No. 33-16277), 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.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Francis J. Aguilar Director April 24, 1996
- ----------------------------------
Francis J. Aguilar
/s/ Hugh D. Aycock Director April 24, 1996
- ----------------------------------
Hugh D. Aycock
Director April 24, 1996
- ----------------------------------
Richard Barth
/s/ Kenneth M. Curtis Director April 24, 1996
- ----------------------------------
Kenneth M. Curtis
/s/ H. Gordon MacNeill Director April 24, 1996
- ----------------------------------
H. Gordon MacNeill
/s/ Donald L. Melville Director April 24, 1996
- ----------------------------------
Donald R. Melville
/s/ James L. Pate Director April 24, 1996
- ----------------------------------
James L. Pate
/s/ John A. Rolls Director April 24, 1996
- ----------------------------------
John A. Rolls
</TABLE>
