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EXHIBIT 4.14
GREAT NORTHERN PAPER, INC.
SAVINGS AND CAPITAL GROWTH PLAN FOR SALARIED EMPLOYEES
(AMENDED AND RESTATED, EFFECTIVE JANUARY 1, 1997)
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TABLE OF CONTENTS
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PAGE
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ARTICLE I - DEFINITIONS................................................ 1
1.1 Account.................................................... 1
1.2 ACP Test................................................... 1
1.3 ADP Test................................................... 3
1.4 Affiliate.................................................. 5
1.5 After-Tax Contributions.................................... 5
1.6 After-Tax Employee Account................................. 5
1.7 After-Tax Matched Account.................................. 5
1.8 After-Tax Unmatched Account................................ 5
1.9 Before-Tax Contributions................................... 5
1.10 Before-Tax Matched Account................................. 5
1.11 Before-Tax Unmatched Account............................... 6
1.12 Beneficiary................................................ 6
1.13 Board...................................................... 6
1.14 Break in Service........................................... 6
1.15 Code....................................................... 6
1.16 Compensation............................................... 6
1.17 Current or Accumulated Profits............................. 7
1.18 Elective Contributions..................................... 7
1.19 Elective Deferrals......................................... 7
1.20 Eligible Employee.......................................... 8
1.21 Employee................................................... 8
1.22 Employee Contributions..................................... 8
1.23 ERISA...................................................... 8
1.24 Employer................................................... 8
1.25 Excess Aggregate Contributions............................. 8
1.26 Excess Contributions....................................... 9
1.27 FlexPlan Contribution...................................... 9
1.28 Full-Time Employee......................................... 9
1.29 Gainsharing Contribution.................................. 10
1.30 GNP....................................................... 10
1.31 GNP Basic Contributions................................... 10
1.32 GNP Basic Contribution Account............................ 10
1.33 GNP Matching Account...................................... 10
1.34 GNP Matching Contributions................................ 10
1.35 Highly Compensated Eligible Employee...................... 10
1.36 Hour of Service........................................... 11
1.37 Investment Fund........................................... 11
1.38 Leave of Absence.......................................... 11
1.39 Lower Paid Eligible Employee.............................. 11
1.40 Matching Contributions.................................... 11
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1.41 Military Leave of Absence................................. 11
1.42 Nonelective Contributions................................. 12
1.43 Part-Time Employee........................................ 12
1.44 Participant............................................... 12
1.45 Plan...................................................... 12
1.46 Plan Administrator........................................ 12
1.47 Plan Sponsor.............................................. 12
1.48 Plan Year................................................. 12
1.49 Qualified Matching Contributions.......................... 12
1.50 Qualified Nonelective Contributions....................... 12
1.51 Service................................................... 13
1.52 Severance Date............................................ 13
1.53 Trust Agreement........................................... 13
1.54 Trust Fund................................................ 13
1.55 Trustee................................................... 13
1.56 USERRA.................................................... 14
1.57 Valuation Date............................................ 14
1.58 Vested Value.............................................. 14
ARTICLE II - PARTICIPATION REQUIREMENTS................................. 14
2.1 GNP Basic Contributions (Capital Growth).................. 14
2.2 Before-Tax and After-Tax Contributions.................... 14
2.3 Participation Following Reemployment...................... 15
2.4 Calculation of Service.................................... 15
2.5 Not a Contract of Employment.............................. 21
ARTICLE III - CONTRIBUTIONS............................................. 21
3.1 GNP Basic Contributions................................... 21
3.2 Before-Tax Contributions.................................. 23
3.3 GNP Matching Contributions................................ 25
3.4 After-Tax Contributions................................... 26
3.5 Election Rules............................................ 28
3.6 Section 415 Limitations................................... 29
3.7 Combined Plans Limitation................................. 31
3.8 Excess Contributions and Aggregate Contributions.......... 32
3.9 Contributions Upon Return From Military Leave............. 33
ARTICLE IV - INVESTMENT AND ALLOCATION OF INVESTMENT
GAINS AND LOSSES........................................... 33
4.1 Investment Funds.......................................... 33
4.2 Elections................................................. 34
4.3 Allocation of Investment Gains and Losses................. 35
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ARTICLE V - DISTRIBUTIONS, WITHDRAWALS AND LOANS........................ 35
5.1 Distribution Events....................................... 35
5.2 Withdrawals............................................... 37
5.3 Loans..................................................... 39
5.4 Form and Timing of Distributions.......................... 41
ARTICLE VI - FIDUCIARIES................................................ 46
ARTICLE VII - PLAN ADMINISTRATION....................................... 46
7.1 Administration by Fiduciaries............................. 46
7.2 Responsibilities of the Plan Sponsor...................... 47
7.3 Responsibilities of the Trustee........................... 48
7.4 Responsibilities of the Plan Administrator................ 48
7.5 Delegation of Duties...................................... 49
7.6 Committee Action.......................................... 49
7.7 Individual Indemnification................................ 49
7.8 Expenses.................................................. 50
ARTICLE VIII - TRUST FUND AND TRUSTEE................................... 50
ARTICLE IX - AMENDMENT AND TERMINATION.................................. 50
9.1 Amendment................................................. 50
9.2 Merger, Consolidation or Transfer of Assets............... 50
9.3 Termination............................................... 51
9.4 Withdrawal of an Employee................................. 51
9.5 Procedure................................................. 51
ARTICLE X - MISCELLANEOUS............................................... 51
10.1 Construction.............................................. 51
10.2 Spendthrift Clause........................................ 52
10.3 Legally Incompetent....................................... 52
10.4 Benefits Supported Only By Trust Fund..................... 52
10.5 Discrimination............................................ 52
10.6 Claims.................................................... 52
10.7 No Reversion.............................................. 52
10.8 Agent for Service of Process.............................. 53
10.9 Rollover Contributions.................................... 53
10.10 Shareholder Rights for Bowater Incorporated
Common Stock.............................................. 54
10.11 Qualified Domestic Relations Order........................ 56
10.12 Plan to Plan Transfers.................................... 56
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ARTICLE XI - TRANSFER OF ASSETS FROM AND ASSUMPTION OF
CERTAIN LIABILITIES OF THE GEORGIA-PACIFIC
CORPORATION SAVINGS AND CAPITAL GROWTH PLAN............... 57
11.1 Asset Transfer........................................... 57
11.2 Vesting.................................................. 57
11.3 Eligibility to Participate............................... 57
ARTICLE XII - TOP HEAVY PROVISIONS..................................... 57
12.1 Overriding Provision..................................... 57
12.2 Definitions.............................................. 58
12.3 Minimum Contribution..................................... 60
ARTICLE XIII - CHANGE IN CONTROL PROVISIONS............................ 60
13.1 General.................................................. 60
13.2 Special Vesting.......................................... 60
13.3 Definitions.............................................. 60
13.4 No Amendment............................................. 62
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GREAT NORTHERN PAPER, INC.
SAVINGS AND CAPITAL GROWTH PLAN
(AMENDED AND RESTATED, EFFECTIVE JANUARY 1, 1997)
GREAT NORTHERN PAPER, INC., a corporation organized and existing under
the laws of the State of Delaware, on its behalf and on behalf of each other
Employer, amends and restates the Great Northern Paper, Inc. Savings and Capital
Growth Plan (originally effective January 1, 1992) in the form of this restated
Plan, effective as of January 1, 1997 (the "Effective Date"). This plan is
amended and restated for the benefit of Eligible Employees who worked for, or
who continued to work for, an Employer after January 1, 1997. The rights to
benefits of Eligible Employees who terminated employment with the Employer
before January 1, 1997 shall be determined in accordance with the Plan document
then in effect.
ARTICLE I
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:
1.1 ACCOUNT. Account means the Account established by the Plan
Administrator to show as of any Valuation Date the contributions made by, or on
behalf of, a Participant, plus the investment gains and less the investment
losses on such contributions. An Account shall cease to exist when exhausted
through distributions or forfeitures made in accordance with this Plan.
1.2 ACP TEST.
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(a) ACP Test means the Actual Contribution Percentage ("ACP")
test, which the Plan Administrator shall perform as of the
last day of each Plan Year to determine the extent to which
the GNP Matching Contributions and After-Tax Contributions for
such Plan Year can be made, and such test shall be satisfied
only if the Actual Contribution Percentage (as defined in
subsection (b)) for all Highly Compensated Eligible Employees
for the Plan Year does not exceed the greater of:
(1) 125% of the Actual Contribution Percentage for all
Lower Paid Eligible Employees for the preceding Plan
Year, or
(2) The lesser of (i) two times the Actual Contribution
Percentage for all Lower Paid Eligible Employees for
the preceding Plan Year or (ii) the Actual
Contribution Percentage for all Lower Paid Eligible
Employees for the preceding Plan Year plus two
percentage points.
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The ACP for Lower Paid Eligible Employees shall be determined
on the basis of the preceding Plan Year, unless the Employer
elects to make such determinations on the basis of the current
Plan Year. Any such election shall be irrevocable with respect
to all Plan Years, except as otherwise permitted by the
Secretary of the Treasury by issued determination, ruling or
regulation.
(b) The term "Actual Contribution Percentage" means as to all
Highly Compensated Eligible Employees and all Lower Paid
Eligible Employees for the applicable Plan Year, the average
of the ratios ("Actual Contribution Ratios"), calculated
separately for each Eligible Employee in each such group, of
(1) the sum of the GNP Matching Contributions, After-Tax
Contributions and Employer contributions to permit investments
in Company Stock under Section 4.1(a) made on his behalf to
(2) his "compensation" (as defined in Section 414(s) of the
Code, as determined by the Plan Administrator) for such Plan
Year.
(c) For purposes of applying the ACP Test, all Employee and
Matching Contributions that are made under two or more plans
that are aggregated for purposes of Code Section 401(a)(4) or
410(b) (other than Code Section 410(b)(2)(A)(ii)) are to be
treated as made under a single plan. If two or more plans are
permissively aggregated for purposes of Code Section 401(m),
the aggregated plans must also satisfy Code Sections 401(a)(4)
and 410(b) as though they were a single plan.
(d) For purposes of the ACP Test, the Employer may, to the extent
permitted under Code Section 401(m)(3), elect to treat
Elective Contributions and Qualified Nonelective Contributions
for a given Plan Year as GNP Matching Contributions, provided
that such Elective Contributions are not disregarded for
purposes of the ACP Test to the extent required by Code
Section 401(m)(3).
(e) In any Plan Year in which the "two times, but not more than
two percentage points" alternative (described in paragraph
(a)(2) of Sections 1.2 and 1.3) must be utilized to pass both
the ACP Test and the ADP Test, the sum of the ACP and the ADP
for Highly Compensated Eligible Employees shall not exceed the
greatest of:
(1) (A) 1.25 times the greater of the ACP or ADP for
Lower Paid Eligible Employees plus
(B) Two percent plus (but not more than two
times) the lesser of the ACP or ADP for
Lower Paid Eligible Employees;
(2) (A) 1.25 times the lesser of the ACP or ADP for
Lower Paid Eligible Employees plus
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(B) Two percent plus the greater of (but not
more than two times the lesser of) the ACP
or ADP for Lower Paid Eligible Employees; or
(3) The maximum permitted by the Multiple Use Test set
forth in Treasury Regulation Section 1.401(m)-2(b)
(as amended).
(f) If the Multiple Use Test Limit is exceeded, the Employer will
reduce the ADP of the Highly Compensated Eligible Employees in
the manner described in Treasury Regulation Section
1.401(k)-1(f)(2), as provided in Treasury Regulation Section
1.401(m)-2(c)(3).
1.3 ADP TEST.
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(a) ADP Test means the Actual Deferral Percentage ("ADP") test,
which the Plan Administrator shall perform as of the last day
of each Plan Year to determine the extent to which the
Before-Tax Contributions each Highly Compensated Eligible
Employee elects for the Plan Year can be made, and such test
shall be satisfied only if the Actual Deferral Percentage (as
defined in subsection (b)) for all Highly Compensated Eligible
Employees for the Plan Year does not exceed the greater of:
(1) 125% of the ADP for all Lower Paid Eligible
Employees for the preceding Plan Year, or
(2) The lesser of (i) two times the ADP for all Lower
Paid Eligible Employees for the preceding Plan Year
or (ii) the ADP for all Lower Paid Eligible Employees
for the preceding Plan Year plus two percentage
points.
The ADP for Lower Paid Eligible Employees shall be determined
on the basis of the preceding Plan Year, unless the Employer
elects to make such determinations on the basis of the current
Plan Year. Any such election shall be irrevocable with respect
to all Plan Years, except as otherwise permitted by the
Secretary of the Treasury by issued determination, ruling or
regulation.
(b) The term "Actual Deferral Percentage" means as to all Highly
Compensated Eligible Employees and all Lower Paid Eligible
Employees for the applicable Plan Year, the average of the
ratios ("Actual Deferral Ratios"), calculated separately for
each Eligible Employee in each such group, of (1) the amount
of his Before Tax Contributions to be credited for such Plan
year to his Before-Tax Employee Account to (2) his
"compensation" (as defined in Section 414(s) of the Code, as
determined by the Plan Administrator) for such Plan Year.
(c) The Employer may elect to take into account in computing the
ADP for all Employees Qualified Matching Contributions and
Qualified Nonelective
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Contributions, if the requirements of section 1.401(k)-l(b)(5)
of the Treasury Regulations under the Code are satisfied.
(d) If Elective Deferrals are taken into account for purposes of
the ACP Test of subsection (a) of Section 1.2 for any Plan
Year, such contributions shall not be taken into account under
subparagraph (a) of this definition of ADP for such year.
(e) For purposes of applying the provisions of this subsection,
all Elective Contributions that are made under two or more
plans that are aggregated for purposes of Code Section
401(a)(4) or 410(b) (other than Code Section 410(b)(2)(A)(ii))
are to be treated as made under a single plan. If two or more
plans are permissively aggregated for purposes of Code Section
401(k), the aggregated plans must also satisfy Code Sections
401(a)(4) and 410(b) as though they were a single plan.
(f) Excess Contributions must be corrected within two and one-half
(2-1/2) months after the close of the Plan Year for which they
were made.
(g) In any Plan Year in which the "two times, but not more than
two percentage points" alternative (described in paragraph (b)
of Sections 1.2 and 1.3) must be utilized to pass both the ACP
Test and the ADP Test the sum of the ACP and the ADP for
Highly Compensated Eligible Employees shall not exceed the
greatest of:
(1) (A) 1.25 times the greater of the ACP or ADP for
Lower Paid Eligible Employees plus
(B) Two percent plus (but not more than two
times) the lesser of the ACP or ADP for
Lower Paid Eligible Employees;
(2) (A) 1.25 times the lesser of the ACP or ADP for
Lower Paid Eligible Employees plus
(B) Two percent plus the greater of (but not
more than two times the lesser of) the ACP
or ADP for Lower Paid Eligible Employees; or
(3) The maximum permitted by the Multiple Use Test set
forth in Final Treasury Regulation Section
1.401(m)-2(b) (as amended).
(h) If the Multiple Use Test Limit is exceeded, the Employer will
reduce the ADP of the Highly Compensated Eligible Employees in
the manner described in Treasury Regulation Section
1.401(k)-l(f)(2), as provided in Treasury Regulation Section
1.401(m)-2(c)(3).
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1.4 AFFILIATE. Affiliate means:
---------
(a) Any parent, subsidiary or brother-sister corporation that is a
member of a controlled group of corporations (as defined in
Code Section 1563(a), disregarding Sections 1563(a)(4) and
1563(e)(3)) of which the Plan Sponsor is a member;
(b) Any trade or business, whether or not incorporated, which is
considered to be under common control with the Plan Sponsor
under regulations prescribed by the Secretary of the Treasury
pursuant to Code Section 414(c); and
(c) Any person or organization that is a member of an affiliated
service group (as defined in Code Section 414(m)) with the
Plan Sponsor; provided, solely for purposes of Section 3.6,
the phrase "more than fifty percent (50%)" shall be
substituted for "at least eighty percent (80%)" each place
that "at least eighty percent (80%)" appears in Code Section
1563(a)(1).
1.5 AFTER-TAX CONTRIBUTIONS. After-Tax Contribution means that
part of a Participant's Compensation that a Participant (other than a
Participant described in Section 1.44(b)) may elect to contribute to the Plan
under Section 3.4 and which is includable in the Participant's gross income.
1.6 AFTER-TAX EMPLOYEE ACCOUNT. After-Tax Employee Account means
the sub-Account to which After-Tax Contributions with respect to a Participant
under Section 3.4 are credited.
1.7 AFTER-TAX MATCHED ACCOUNT. After-Tax Matched Account means the
sub-Account to which After-Tax Contributions eligible for GNP Matching
Contributions under Section 3.4(a) are credited on behalf of a Participant.
1.8 AFTER-TAX UNMATCHED ACCOUNT. After-Tax Unmatched Account means
the sub-Account to which After-Tax Contributions ineligible for GNP Matching
Contributions under Section 3.04(a) are credited on behalf of a Participant.
1.9 BEFORE-TAX CONTRIBUTIONS. Before-Tax Contributions mean that
part of a Participant's Compensation that the Plan Administrator contributes to
this Plan on his behalf under Section 3.2 and which his Employer is not required
to report as his taxable income to the Internal Revenue Service on its Form W-2,
or on any successor or substitute form, solely by reason of the application of
Code Section 401(k).
1.10 BEFORE-TAX MATCHED ACCOUNT. Before-Tax Matched Account means
the sub-Account to which contributions with respect to a Participant under
Section 3.2(a) are credited.
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1.11 BEFORE-TAX UNMATCHED ACCOUNT. Before-Tax Unmatched Account
means the sub-Account to which contributions with respect to a Participant under
Sections 3.2(b) and (c) are credited.
1.12 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 (in equal shares, where more than one): the
Participant's (a) surviving spouse; (b) children; (c) parents; (d) siblings; and
(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
Plan representative or a notary public, or it is established
to the satisfaction of the Plan Administrator that such
consent cannot be obtained because there is no spouse or
because the spouse cannot be located.
1.13 BOARD. Board means the Board of Directors of the Plan
Sponsor.
1.14 BREAK IN SERVICE. Break in Service means a period of absence
from employment as described in Article II.
1.15 CODE. Code means the Internal Revenue Code of 1986, as
amended, or any successor statute (in the event an amendment to the Code
renumbers a section of the Code referred to in this Plan, any such reference to
such section automatically shall become a reference to such section as
renumbered) and the rulings and regulations promulgated thereunder.
1.16 COMPENSATION. Compensation means the sum of (i) basic cash
compensation and overtime paid by the Employer to the Employee (excluding any
bonus or gainsharing contributions) determined without regard to any salary
reduction contributions made on the Employee's behalf under any plan maintained
by the Employer pursuant to Code Sections 125 or 401(k), and (ii) any periodic
severance pay that the Employee is entitled to receive following his or her
termination from active employment.
Notwithstanding the foregoing, Compensation taken into account shall
not exceed $150,000, as adjusted by the Commissioner of Internal Revenue for
increases in the cost of living in accordance with Code Section 401(a)(17)(B).
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1.17 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 the Plan Sponsor or any other Employer to the extent
of the current or accumulated net profits of the Plan Sponsor or such Employer
that remain after the Plan Sponsor's contributions to other plans to which it is
obligated or permitted to contribute, or after contribution of the Employer
Contributions required on behalf of Participants employed by such other
Employer. No reimbursement shall be required as a result of such contribution.
1.18 ELECTIVE CONTRIBUTIONS. Elective Contributions are Employer
Contributions made to a plan that were subject to a cash or deferred election
under a cash or deferred arrangement (whether or not a qualified cash or
deferred arrangement). No amount that has become currently available to an
Employee or that is designated or treated, at the time of deferral or
contribution, as an after-tax Employee Contribution may be treated as an
Elective Contribution.
1.19 ELECTIVE DEFERRALS. Elective Deferral means, with respect to
any taxable year, the sum of:
(a) Any Employer contribution under a qualified cash or deferred
arrangement (as defined in Code Section 401(k)) to the extent
not includable in a Participant's gross income for the taxable
year under Code Section 402(e)(3) (determined without regard
to the limits in Code Section 402(g)), and
(b) Any Employer contribution to the extent not includable in
gross income for the taxable year under Code Section
402(h)(1)(B) (determined without regard to the limits in Code
Section 402(g)), and
(c) Any Employer contribution to purchase an annuity contract
under section 403(b) under a salary reduction agreement
(within the meaning of Code Section 3121(a)(5)(D)); unless
such contribution is made pursuant to a one-time irrevocable
election made by the Employee at the time of initial
eligibility to participate in the agreement or is made
pursuant to a similar arrangement involving a one-time
irrevocable election specified in the Treasury Regulations
under the Code, and
(d) Any Employee Contribution designated as deductible under a
trust described in Code Section 501(c)(18) to the extent
deductible from the individual's income for the taxable year
on account of Code Section 501(c)(18) (determined without
regard to the limits in Code Section 402(g)).
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1.20 ELIGIBLE EMPLOYEE. Eligible Employee means for each Plan Year
each Employee of an Employer who is employed in connection with the Employer's
business operations in Maine on a regular salaried basis, other than an Employee
who is treated as such solely by reason of the "leased employee" rules set forth
in Code Section 414(n).
1.21 EMPLOYEE. Employee means for each Plan Year each person who is
an employee under common law of the Employer or an Affiliate and each person who
is treated as an employee of the Employer or an Affiliate by reason of the
"leased employee" rules set forth in Code Section 414(n).
1.22 EMPLOYEE CONTRIBUTIONS. Employee Contribution means any
mandatory or voluntary contribution to the Plan that is treated at the time of
contribution as an after-tax Employee Contribution and is allocated to a
separate account to which attributable earnings and losses are allocated.
1.23 ERISA. ERISA means the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute (in the event an amendment to
ERISA renumbers a section of ERISA referred to in this Plan, any such reference
to such section automatically shall become a reference to such section as
renumbered), and the rulings and regulations promulgated thereunder.
1.24 EMPLOYER. Employer means GNP, the Forest Products Division of
the Plan Sponsor, and each Affiliate which the Plan Sponsor designates in
writing as such from time to time and which adopts the Plan.
1.25 EXCESS AGGREGATE CONTRIBUTIONS. Excess Aggregate Contribution
means, with respect to any Plan Year, the excess of:
(a) The aggregate amount of the Matching Contributions and
Employee Contributions (and including any Qualified
Nonelective Contribution or Elective Deferral taken into
account in computing the ACP, but excluding Qualified Matching
Contributions treated as Elective Contributions under
subsection (c) of section 1.3) actually made on behalf of
Highly Compensated Eligible Employees for such Plan Year, over
(b) The maximum amount of such contributions permitted under the
limitations of Section 1.2, determined by reducing
contributions made on behalf of Highly Compensated Eligible
Employees in order of their Actual Contribution Ratios
(described in Section 1.2) beginning with the highest of such
percentages, as described below.
The amount of Excess Aggregate Contributions for a Highly Compensated
Eligible Employee under a plan subject to the requirements of section 401(m)
will be determined in the following manner. First, the Actual Contribution Ratio
(ACR) of the Highly Compensated Eligible Employee with the highest ACR is
reduced to the extent necessary to satisfy the ACP Test or cause
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such ratio to equal the ACR of the Highly Compensated Eligible Employee with the
next highest ratio. Second, this process is repeated until the ACP Test is
satisfied. The amount of Excess Aggregate Contributions for a Highly Compensated
Eligible Employee is then equal to the total of Employee, Matching and other
Contributions taken into account for the ACP Test minus the product of the
Employee's Contribution ratio as determined above and the Employee's
Compensation.
1.26 EXCESS CONTRIBUTIONS. Excess Contribution means, with respect
to any Plan Year, the excess of:
(a) The aggregate amount of Elective Contributions (including
Qualified Nonelective Contributions and Qualified Matching
Contributions that are treated as Elective Contributions)
actually paid over to the trust on behalf of Highly
Compensated Eligible Employees for such Plan Year, over
(b) The maximum amount of such contributions permitted under the
limitations of Section 1.3, determined by reducing
contributions made on behalf of Highly Compensated Eligible
Employees in order of the Actual Deferral Ratios (described in
Section 1.3) beginning with the highest of such percentages,
as described below.
The amount of Excess Contributions for a Highly Compensated Eligible
Employee will be determined in the following manner. First, the ADR of the
Highly Compensated Eligible Employee with the highest ADR is reduced to the
extent necessary to satisfy the ADP Test or cause such ratio to equal the ADR of
the Highly Compensated Eligible Employee with the next highest ratio. Second,
this process is repeated until the ADP Test is satisfied. The amount of Excess
Contributions for a Highly Compensated Eligible Employee is then equal to the
total of elective and other contributions taken into account for the ADP Test
minus the product of the employee's reduced deferral ratio as determined above
and the employee's Compensation.
1.27 FLEXPLAN CONTRIBUTION. A contribution consisting of an amount
contributed on behalf of an Eligible Employee under an Employer-sponsored plan
meeting the requirements of Code Section 125 that the Eligible Employee elects
to contribute to the Plan in accordance with Section 3.2(c).
1.28 FULL-TIME EMPLOYEE. Full-Time Employee means an Employee who
is designated as being employed on a full-time basis on an Employer's payroll
records and works either in the State of Maine or for the business operation
located in the State of Maine. Notwithstanding the foregoing, the term
"Employee" shall not include: (a) any individual designated by the Employer on
its records as an independent contractor, consultant or an individual performing
services for the Employer (even if a court, the Internal Revenue Service or
other entity determines that such individual is a common law employee); (b) any
leased employee (as defined under Code Section 414(n)); (c) any seasonal or
temporary employees; and (d) any employee of the Employer whose terms and
conditions of employment are governed by a collective bargaining agreement with
respect
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to which benefits of the type provided to employees under the Plan were the
subject of good faith bargaining, unless such agreement provides for
participation in the Plan.
1.29 GAINSHARING CONTRIBUTION. A contribution consisting of an
amount that would otherwise be paid to an Eligible Employee under an
Employer-sponsored gainsharing plan or program that an Eligible Employee elects
to contribute to the Plan in accordance with Section 3.2(b).
1.30 GNP. GNP means Great Northern Paper, Inc., a Delaware
corporation, and any successor to such corporation.
1.31 GNP BASIC CONTRIBUTIONS. GNP Basic Contributions means the
contributions made by GNP in accordance with Section 3.1.
1.32 GNP BASIC CONTRIBUTION ACCOUNT. GNP Basic Contribution
Account means the sub-Account to which GNP Basic Contributions with respect to a
Participant are credited.
1.33 GNP MATCHING ACCOUNT. GNP Matching Account means the sub-
Account to which GNP Matching Contributions with respect to a Participant are
credited.
1.34 GNP MATCHING CONTRIBUTIONS. GNP Matching Contributions means
the contributions made by GNP in accordance with Section 3.3.
1.35 HIGHLY COMPENSATED ELIGIBLE EMPLOYEE. Highly Compensated
Eligible Employee means an Eligible Employee who performed services during the
determination year for the Employer and who:
(a) Is a five percent owner (as defined in Code Section 416(i)(1)
(A)(iii)) at any time during the determination year or the
look-back year; or
(b) Received compensation in excess of $80,000 (indexed in
accordance with Code Section 415(d)) for the look-back year,
and if the Employer so elects, was a member of the top-paid
group during the look-back year.
For purposes of this definition: (i) the "determination year" is the Plan Year
for which the identification of Highly Compensated Eligible Employees is being
made; (ii) the "look-back year" is the preceding Plan Year; (iii) the "top-paid
group" means the top 20% of Employees ranked on the basis of compensation
received during the year; and (iv) "compensation" is compensation within the
meaning of Section 3.6.
Notwithstanding the foregoing, the determination of which Eligible
Employees are Highly Compensated Eligible Employees shall at all times be
subject to the rules of Code Section 414(q). A former Employee shall be treated
as a Highly Compensated Eligible Employee if he was a Highly
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<PAGE> 16
Compensated Eligible Employee upon separation or was a Highly Compensated
Eligible Employee at any time after attaining age 55.
1.36 HOUR OF SERVICE. Hour of Service means each hour for which an
Eligible Employee is entitled to credit under the Plan for services performed
for an Employer or one or more Affiliates, as described in Section 2.4
1.37 INVESTMENT FUND. Investment Fund means the funds set forth in
Section 4.1, and shall mean such funds as established within the Trust Fund from
time to time at the direction of the Plan Sponsor in accordance with Section 4.1
for the investment of the assets held under the Trust Fund.
1.38 LEAVE OF ABSENCE. Leave of Absence means an absence authorized
by the Employer under its standard personnel practices as applied in a uniform
and non-discriminatory manner to all persons similarly situated, provided the
Employee resumes employment with the Employer within the period specified in the
authorization of the leave of absence.
1.39 LOWER PAID ELIGIBLE EMPLOYEE. Lower Paid Eligible Employee
means for each Plan Year each Eligible Employee (other than a Highly Compensated
Eligible Employee) who has satisfied the employment requirement for
participation set forth in Sections 2.1 and 2.2 for such Plan Year.
1.40 MATCHING CONTRIBUTIONS. Matching Contribution means:
----------------------
(a) Any Employer contribution (including a contribution made at
the Employer's discretion) made to the Plan on behalf of an
Employee on account of the Employee Contributions made by such
Employee,
(b) Any Employer contribution (including a contribution made at
the Employer's discretion) made to the Plan on behalf of an
Employee on account of the Employee's Elective Contribution,
and
(c) Any forfeiture allocated on the basis of Employee
Contributions, Matching Contributions or Elective
Contributions.
1.41 MILITARY LEAVE OF ABSENCE. Military Leave of Absence means an
absence from regular employment to perform any uniformed service, duty or
training within the meaning of USERRA. Such Military Leave of Absence shall
continue from the Participant's date of entry into the uniformed service until
the earliest of the following:
(a) the expiration of the period following the date of his
discharge from uniformed service during which he is required
to apply for reemployment with the Employer under USERRA;
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<PAGE> 17
(b) the date of his return to employment to the Employer;
(c) the date on which he takes employment with an employer other
than the Employer; or
(d) the date of his death.
1.42 NONELECTIVE CONTRIBUTIONS. Nonelective Contribution means
Employer Contributions (other than Matching Contributions) with respect to which
the Employee may not elect to have the contributions paid to the Employee in
cash or other benefits instead of being contributed to the Plan.
1.43 PART-TIME EMPLOYEE. Part-Time Employee means an Employee who
is designated as being employed on a part-time basis on an Employer's payroll
records.
1.44 PARTICIPANT. Participant means for any Plan Year:
(a) An Employee who has met the requirements set forth under
either Sections 2.1 or 2.2; or
(b) A person for whom an Account continues to exist under this
Plan.
1.45 PLAN. Plan means the Great Northern Paper, Inc. Savings and
Capital Growth Plan as set forth in this document and as it may, from time to
time, be amended.
1.46 PLAN ADMINISTRATOR. Plan Administrator means the Plan
Administrator appointed and acting in accordance with Article VII.
1.47 PLAN SPONSOR. Plan Sponsor means Bowater Incorporated, a
corporation organized and existing under the laws of the State of Delaware, and
any successor to such corporation.
1.48 PLAN YEAR. Plan Year means the calendar year.
1.49 QUALIFIED MATCHING CONTRIBUTIONS. Qualified Matching
Contribution means Matching Contributions which satisfy the requirements of
subsection (b) of the definition of Qualified Nonelective Contributions.
1.50 QUALIFIED NONELECTIVE CONTRIBUTIONS. Qualified Nonelective
Contribution means any Employer Contribution (other than a Matching Contribution
or Elective Contribution) with respect to which:
(a) The Employee may not elect to receive the contribution paid to
the Employee in cash instead of being contributed to the Plan,
and
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<PAGE> 18
(b) Such contributions are nonforfeitable when made and
distributable only under the following circumstances:
(1) The Employee's retirement, death, disability or
separation from service;
(2) The termination of the Plan without establishment or
maintenance of another defined contribution plan
(other than an ESOP or SEP);
(3) The Employee's attainment of age 59-1/2 or the
Employee's hardship;
(4) The sale or other disposition by the Employer to an
unrelated corporation of substantially all of the
assets used in the trade or business to which the
Plan relates, but only with respect to Employees who
continue employment with the acquiring corporation
which does not maintain the Plan after the
disposition; and
(5) The sale or other disposition by the Employer of its
interest in a subsidiary to an unrelated entity, but
only with respect to Employees who continue
employment with the subsidiary, the acquiring entity
of which does not maintain the Plan after the
disposition.
Nonelective Contributions which may be treated as
Matching Contributions must satisfy these
requirements without regard to whether they are
actually taken into account as Matching
Contributions.
1.51 SERVICE. Service means employment and certain absences from
employment taken into account for vesting and other purposes under the Plan, as
described in Section 2.4.
1.52 SEVERANCE DATE. Severance Date means the date as of which a
Full-Time Employee is deemed to have severed his employment relationship, as
described in Section 2.4(a)(6).
1.53 TRUST AGREEMENT. Trust Agreement means the Master Trust
Agreement between Bowater Incorporated and Fidelity Management Trust Company
dated as of July 1, 1994.
1.54 TRUST FUND. Trust Fund means the assets held by the Trustee
in accordance with the Trust Agreement.
1.55 TRUSTEE. Trustee means Fidelity Management Trust Company, as
Trustee under the Master Trust Agreement between Bowater Incorporated and
Fidelity Management Trust Company dated as of July 1, 1994, and its successors.
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<PAGE> 19
1.56 USERRA. USERRA means the Uniformed Services Employment and
Reemployment Rights Act of 1994, as amended, or any successor statute, and the
rulings and regulations promulgated thereunder.
1.57 VALUATION DATE. Valuation Date means 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 IV. 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.
1.58 VESTED VALUE. Vested Value means the nonforfeitable portion
of a Participant's Account(s) as further described in Article V.
ARTICLE II
PARTICIPATION REQUIREMENTS
2.1 GNP BASIC CONTRIBUTIONS (CAPITAL GROWTH). Each Eligible
Employee will satisfy the participation requirement for GNP Basic Contributions
upon his completion of an Hour of Service for the Employer until his employment
as an Employee thereafter terminates, provided that the Eligible Employee meets
the requirements of Section 3.1 for an allocation of GNP Basic Contributions for
each Plan Year.
2.2 BEFORE-TAX AND AFTER-TAX CONTRIBUTIONS.
(a) General Rule. Each Eligible Employee shall satisfy the
participation requirements to make Before-Tax Contributions or
After-Tax Contributions following the completion of one Year
of Service (as defined based upon the Eligible Employee's
status as a Full-Time Employee or Part-Time Employee), which
participation shall be effective on the first day of the
calendar month following the date he completes and delivers a
timely Election Form in accordance with Section 3.5. A
Participant's participation herein shall continue until the
date his election to make such Contributions terminates in
accordance with Section 3.5 or Section 5.2(a)(2)(C).
(b) Subsequent Elections. An Eligible Employee whose election to
make Before-Tax Contributions and After-Tax Contributions
terminates in accordance with Section 3.5 shall automatically
satisfy the participation requirement set forth in Section
2.2(a) as of the first day of the first calendar month
thereafter on which he is again an Eligible Employee and he
completes and delivers a timely Election Form in accordance
with Section 3.5 to make such contributions; if eligibility to
make Before-Tax Contributions terminates in accordance with
Section 5.2(a)(2)(C), contributions will recommence as
described in that section.
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<PAGE> 20
2.3 PARTICIPATION FOLLOWING REEMPLOYMENT. The provisions of this
Section 2.3 shall apply to a Participant who terminates his employment and is
subsequently reemployed by the Employer.
(a) An Employee who terminates his employment and is reemployed
before he incurs a one-year Break in Service (as defined based
on his status as a Full-Time Employee or Part-Time Employee
immediately prior to his termination) shall be eligible to
participate in the Plan as of the date of his reemployment,
provided that the Employee actively participated in the Plan
prior to the termination of his employment. If the Employee
satisfied the participation requirements of Section 2.1 prior
to the termination of his employment, he shall be deemed to
satisfy the participation requirements for GNP Basic
Contributions as of the date of his reemployment. If the
Employee satisfied the participation requirements of Section
2.2 prior to the termination of his employment but did not
participate in the Plan with respect to Before-Tax or
After-Tax Contributions, he shall be deemed to satisfy the
participation requirements for such contributions as of the
first day of the calendar month following his reemployment,
provided that he completes and delivers a timely Election Form
to the Plan Administrator.
(b) If a Participant whose Employment terminates subsequently
incurs a one year Break in Service and is reemployed, either:
(i) had a vested balance under the Plan when his employment
terminates equal to the total balance of his Account; or (ii)
is reemployed before incurring five or more consecutive years
of Break in Service, he may participate in the Plan following
his reemployment as follows:
(1) GNP Basic Contributions: The Participant shall
satisfy the participation requirements for GNP Basic
Contributions as of the date he satisfies the
requirements of Section 2.1; provided, that, if the
Participant satisfied the requirements of Section 2.1
before his prior Employment terminated, he shall be
deemed to satisfy the participation requirements for
GNP Basic Contributions as of his reemployment.
(2) Before-Tax and/or After-Tax Contributions: The
Participant shall satisfy the participation
requirements for Before-Tax and/or After-Tax
Contributions as of the date he satisfies the
requirements of Section 2.2.
(c) If a Participant terminates his employment before he becomes
fully vested under the Plan and is reemployed after incurring
five or more consecutive one-year Breaks in Service, he shall
be treated as a new Employee, for purposes of his eligibility
to participate in the Plan upon the recommencement of his
employment.
2.4 CALCULATION OF SERVICE. This Section 2.4 describes the manner
in which Service is calculated under the Plan.
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<PAGE> 21
(a) For all purposes of the Plan the following terms shall have
the designated meanings:
(1) Break in Service.
----------------
(A) While an individual is a Full-Time Employee,
"Break in Service" shall mean a Severance
Period of at least 12 consecutive months
during which the Full-Time Employee fails to
perform an Hour of Service, beginning on his
Severance Date; provided, however, that the
first 12 consecutive month period of absence
from work following the Employee's Severance
Date shall not be included in the
calculation of a Break in Service if such
absence is for Maternity or Paternity
Reasons. Notwithstanding the foregoing, an
Employee shall not be deemed to have
incurred a Break in Service if he is on a
Leave of Absence in excess of 12 months and
returns to employment upon the expiration of
such leave.
(B) While an individual is a Part-Time Employee,
"Break in Service" shall mean a Plan Year in
which he fails to complete 501 or more Hours
of Service. A Part-Time Employee who is
absent from employment for Maternity or
Paternity Reasons shall be credited with the
Hours of Service which he would have earned
but for such absence, or, in any case in
which such hours cannot be determined, eight
Hours of Service per day of such absence.
The Hours of Service credited under the
preceding sentence shall be credited in the
computation period in which the Part-Time
Employee's absence begins, if necessary to
prevent a Break in Service in that period,
or, in all other cases, in the following
computation period.
(2) Employment Date. The date on which an Employee first
completes an Hour of Service.
(3) Hour of Service.
---------------
(A) For a Plan Year beginning prior to January
1, 1997, Hours of Service shall be equal to
the hours of service credited under the
provisions of the Plan in effect for such
Plan Year.
(B) Effective January 1, 1997, while an
individual is a Full-Time Employee, "Hour of
Service" shall mean:
(i) Each hour for which an Employee is
paid, or entitled to payment, for
the performance of duties for the
Employer or an Affiliate during the
applicable period. These Hours of
16
<PAGE> 22
Service shall be credited to the
Employee for the computation period
or periods in which the duties are
performed.
(ii) Each hour for which back pay,
irrespective of mitigation of
damages, is either awarded or agreed
to by the Employer or an Affiliate.
Such Hours of Service shall be
credited to the Employee for the
computation period or periods to
which the award or agreement
pertains, rather than the
computation period in which the
award, agreement or payment is made.
Provided, however, that:
(iii) An hour for which an Employee is
paid, or entitled to payment on
account of a period when he performs
no duties as an Employee shall not
be credited as an Hour of Service if
such payment is made or due under a
plan or arrangement maintained
solely to comply with applicable
unemployment compensation laws, and
(iv) An Hour of Service shall not be
credited to an Employee on account
of a payment which solely reimburses
such Employee for medical or
medically-related expenses incurred
by or on behalf of the Employee.
(C) Effective January 1, 1997, while an
individual is a Part-Time Employee, "Hour of
Service" shall mean:
(i) The Hours of Service credited under
subparts (i) and (ii) of part (B)
above; plus
(ii) Each hour for which the Part-Time
Employee is paid, or entitled to
payment, on account of a period of
time during which no duties are
performed (irrespective of whether
the employment relationship has
terminated) due to vacation,
holiday, illness, incapacity
(including disability or pregnancy),
layoff, jury duty, military service
or Leave of Absence. No more than
501 Hours of Service will be
credited under this subsection (ii)
for any single continuous period
(whether or not such period occurs
during a single computation period).
The same Hours of Service shall not be
credited both under (i) and (ii) of this
part (C).
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<PAGE> 23
In determining the Hours of Service credited
to a Part-Time Employee who is employed by
the Company on other than an hourly- rated
basis, such Employee shall be credited with
ten Hours of Service per day for each day he
would, if hourly-rated, be credited with
Hours of Service pursuant to subpart (ii) of
this part (C).
In the case of a payment which is made or
due on account of a period during which a
Part-Time Employee performs no duties, to
the extent that such award or agreement is
made with respect to such a period described
in subsection (ii) of part (B) above, the
number of Hours of Service to be credited
shall be determined in accordance with
Department of Labor Regulations ss.
2530.200b-2, which is incorporated herein by
reference.
(D) Nothing in this Section 2.4(a)(3) shall be
construed as denying an Employee credit for
an Hour of Service if credit is required by
applicable federal law.
(E) Hours of Service with an Affiliated Employer
shall be credited as an Hour of Service
under this Plan. Hours of Service will also
be credited for any individual considered to
be an Employee for purposes of this Plan
under Code Sections 414(n) or (o) and the
regulations thereunder (to the extent
therein required) or for an individual who
is a common law employee but is designated
as an independent contractor.
(F) Solely for purposes of determining an
Employee's eligibility to participate in the
Plan, Hours of Service shall include hours
during an approved Leave of Absence granted
to an Employee under the Family and Medical
Leave Act of 1993, if the Employee returns
to work for an Employer at the end of such
Leave of Absence. Such Hours of Service
shall be calculated in accordance with
applicable regulations of the United States
Department of Labor.
(4) Maternity or Paternity Reasons. With respect to any
Employee: (a) the Employee's pregnancy; (b) the birth
of the Employee's child; (c) the placement of a child
with the Employee in connection with the adoption of
such child by the Employee; or (d) the need to care
for such child for a period beginning immediately
following such birth or placement.
(5) Reemployment Date. The date on which an Employee
first completes an Hour of Service after a Severance
Date.
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<PAGE> 24
(6) Severance Date. The earlier of:
--------------
(A) The date on which a Full-Time Employee
quits, retires (including retirement for
disability under Section 5.1(b)), is
discharged or dies; or
(B) The first anniversary of the first date of a
period in which a Full-- Time Employee
remains absent from service with an Employer
or
Affiliate (with or without pay) for any
reason (such as vacation, holiday, sickness,
Leave of Absence or layoff) other than those
specified in clause (A) above.
(7) Severance Period. Each period from an Employee's
Severance Date to his next Reemployment Date.
(b) Subject to the provisions of Sections 2.4(h), for the period
preceding January 1, 1989, an Employee shall be credited with
Service under this Plan at least equal to the Vesting Service
the Employee had accrued under the G-P Plan (as that term is
defined in Section 11.1) through December 31, 1988, determined
under the provisions of the G-P Plan then in effect.
(c) Effective for a Plan Year prior to January 1, 1997, Service
shall be credited in accordance with the provisions of the
Plan in effect for such Plan Year.
(d) Effective January 1, 1997, the following rules shall apply to
the crediting of Service for Full-Time Employees:
(1) Each period from an Employee's Employment Date (or
Reemployment Date) to his next Severance Date; and
(2) If an Employee performs an Hour of Service within 12
months of a Severance Date, the period from such
Severance Date to such Hour of Service; and
(3) In the case of an Employee who leaves employment to
enter uniformed service within the meaning of USERRA,
the period of such uniformed service, provided that
the Employee resumes employment with the Employer or
Affiliate within the period during which his
reemployment rights are protected under USERRA.
(e) Effective January 1, 1997, the following rules shall apply to
the crediting of Service for Part-Time Employees:
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<PAGE> 25
(1) A Part-Time Employee shall be credited with a Year of
Service for participation if the Employee is employed
by the Employer or an Affiliate during a 12
consecutive month period commencing on the date the
Part-Time Employee first completes an Hour of
Service, provided that he is credited with not less
than 1,000 Hours of Service during such 12
consecutive month period. If the Part-Time Employee
fails to complete 1,000 or more Hours of Service
within such 12 consecutive month period, the
Part-Time Employee shall be credited with a Year of
Service for participation for the first Plan Year
(beginning with the Plan Year that includes the first
anniversary of the date the Employee first completed
an Hour of Service) during which a Part-Time
Employee is credited with or more Hours of Service.
(2) A Part-Time Employee shall be credited with a Year of
Service for purposes of Sections 2.2, 2.3, 3.1 and
5.1 on account of each Plan Year during which a
Part-Time Employee completes 1,000 or more Hours of
Service.
(f) For purposes of determining whether an Employee who transfers
between employment as a Full-Time Employee and employment as a
Part-Time Employee during a Plan Year has earned a Year of
Service for such Plan Year, the following rules shall apply:
(1) In the case of a Full-Time Employee who transfers to
employment as a Part-Time Employee, the Employee
shall receive credit as of the date of transfer for
Years of Service as computed under subsection (d),
and shall be credited with ten Hours of Service for
each day he worked in such Plan Year as a Full-Time
Employee and with the Hours of Service described
under subsection (e) above for the portion of the
Plan Year he works as a Part-Time Employee.
(2) In the case of a Part-Time Employee who transfers to
employment as a Full-Time Employee, the Employee
shall receive credit as of the beginning of the Plan
Year for Years of Service as computed under
subsection (e), and shall receive credit towards a
Year of Service equal to the greater of the credit
towards a Year of Service he would receive under
subsection (d) above for the entire Plan Year and the
credit towards a Year of Service he would receive
under subsection (a)(3)(C) above for the portion of
the Plan Year he worked as a Part-Time Employee.
(3) Notwithstanding any provision of this subsection (f)
to the contrary, the Plan shall comply with Treasury
Regulation Section 1.410(a)-(7)(f) in crediting Years
of Service for Employees who transfer between service
as a Full Time Employee and service as a Part-Time
Employee during a Plan Year.
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<PAGE> 26
(g) The following rules shall apply for purposes of determining
the Years of Service credited to a Participant whose
employment terminates and subsequently recommences.
(1) If the Participant's employment terminates and he is
either:
(A) fully vested under the Plan; or
(B) reemployed after incurring at least one but
less than five consecutive one-year Break(s)
in Service,
then his Years of Service shall include those Years
of Service he earned prior to the termination of his
employment, provided that he completes the applicable
eligibility requirements of Section 2.3 following his
reemployment.
(2) If the Participant's employment terminates before he
is fully vested under the Plan and he is reemployed
after incurring five or more consecutive one-year
Breaks in Service, his Years of Service shall not
include periods prior to the termination of his
employment.
(h) In no event shall there be any duplication of the Service of
any Employee attributable to the same period of time.
2.5 NOT A CONTRACT OF EMPLOYMENT. This Plan does not constitute a
contract of employment, and participation in this Plan shall not give any person
the right to be retained in the employ of the Employer or any Affiliate as an
Eligible Employee or as an Employee or, upon the termination of such employment,
to have any interest or right in the Trust Fund other than as expressly set
forth in this Plan.
ARTICLE III
CONTRIBUTIONS
3.1 GNP BASIC CONTRIBUTIONS
(a) General Rules. Subject to the rules set forth in this Section
3.1 and in Sections 3.6 and 3.7, the Employer shall make a
contribution from its Current or Accumulated Profits for each
Eligible Employee who has satisfied the participation
requirement for such contribution which is equal to three
percent of the first $100,000 of his Compensation for such
Plan Year, provided
(1) He has completed one year of Service (including
Service credited pursuant to Section 11.3) in such
Plan Year and
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<PAGE> 27
(2) He was an Eligible Employee on the last day of such
Plan Year.
(b) Exceptions.
----------
(1) Insufficient Earnings and Profits. If the Current and
Accumulated Profits of the Employer are insufficient
to make the full contribution called for under
Section 3.1(a) for each such Eligible Employee, the
Employer shall make a contribution under Section
3.1(a) which is equal to such Current and Accumulated
Profits and the three percent figure set forth in
Section 3.1(a) shall be reduced accordingly.
(2) Reemployment Requirements. The employment
requirements set forth in Sections 3.1(a) shall not
apply for a Plan Year to an Eligible Employee whose
employment during such Plan Year terminates by reason
of death or disability (as described in Section
5.1(b) and (c)) or whose employment terminates after
either reaching at least age 60 or reaching at least
age 55 and completing at least ten years of Service.
Provided, however, that in determining whether an
Eligible Employee's employment has terminated during
a Plan Year, any period for which the Participant
receives vacation pay shall be considered a
continuation of service.
(3) Transfer from Hourly to Salaried Status. An Employee
who was employed as an hourly paid employee on the
first day of a Plan Year and who becomes an Eligible
Employee during such Plan Year as a result of a
transfer from hourly to salaried status shall be
deemed to satisfy the participation requirement for
the GNP Basic Contributions for such Plan Year.
(4) Reemployment. An Employee who is rehired by an
Employer, who is an Eligible Employee on his
Reemployment Date (as defined in Section 2.4(a)(5))
and whose service is restored at such time pursuant
to Sections 2.4(f) and (g) will be deemed to have met
the requirement of Section 3.1(a)(1) for the Plan
Year in which his Reemployment Date occurs.
(5) Highly Compensated Eligible Employees.
Notwithstanding anything in Section 2.1 or this
Section 3.1 to the contrary, the Plan Administrator
reserves the right to reduce or eliminate the GNP
Basic Contributions, Before-Tax Contributions,
After-Tax Contributions and/or GNP Matching
Contributions with respect to Highly Compensated
Eligible Employees for a given Plan Year. Except as
provided in Section 3.8, any such modification shall
be in the form of uniform reduction of the same type
of contribution percentage applied first to all such
employees whose contributions of that type are at the
highest percentage of Compensation for the Plan Year
in question, then applied to additional such
employees by progressing
22
<PAGE> 28
downward one percentage point at a time to the
desired percentage of Compensation level.
(c) Account. The GNP Basic Contributions made on behalf of each
Eligible Employee shall be credited to his GNP Basic
Contribution Account as of the last day of the Plan Year for
which such contributions are made, and an Eligible Employee's
interest in his GNP Basic Contribution Account shall be
nonforfeitable.
3.2 BEFORE-TAX CONTRIBUTIONS. Subject to the rules set forth in
this Section 3.2, Section 3.5, 3.6 and 3.7, an Eligible Employee who has
satisfied the participation requirement set forth in Section 2.2 may elect to
make the types of Before-Tax Contributions described in subsections (a), (b) and
(c) below:
(a) Percentage Contributions. An Eligible Employee may elect that
the Employer make contributions on his behalf from his
before-tax compensation in one percent increments of his
Compensation, from one percent to ten percent of such
Compensation, provided that such contribution may not exceed
the lesser of $9,500 (adjusted annually for changes in the
cost-of-living pursuant to Section 402(g)(5) of the Code), or
16% of Compensation (when combined with After-Tax
Contributions under Section 3.4). All such contributions shall
be made by the Employer exclusively through payroll
withholding, and such contributions shall be transferred by
the Employer to the Trustee as soon as practicable after the
end of the payroll period from which such contributions are
withheld.
Notwithstanding the foregoing, Before-Tax Contributions shall
be withheld on a monthly basis on the last day of each
calendar month and may not exceed for any month one-twelfth
(1/12th) of the elective deferral limitation amount specified
for each Plan Year pursuant to Code Sections 402(g)(1) and
(5); provided, that if the cost of living adjustment under
Code Section 402(g)(5) is not announced until after the
beginning of the affected Plan Year, the Employer may adjust
the maximum monthly deferral on a prospective basis so that
the maximum amount of authorized deferrals for the Plan year
equals the elective deferral limitation under Code Section
402(g) for that year; provided, further, that in the event an
Eligible Employee is paid on other than a monthly basis,
Before-Tax Contributions may be withheld at the end of each
payroll period subject to the monthly elective deferral
limitation described- above. Contributions pursuant to this
Section 3.2(a) shall be credited to the Employee's Before-Tax
Matched Account up to six percent of Compensation.
(b) Gainsharing Contributions. Effective January 1, 1998, an
Eligible Employee may elect to contribute all but not less
than all of any amount that would otherwise be paid to him
under an Employer-sponsored gainsharing plan or program as a
Gainsharing Contribution to the Plan, subject to the annual
limitations specified in this Section 3.2 and Sections 3.6 and
3.7. Any such election shall be made in
23
<PAGE> 29
accordance with procedures set forth in Section 3.5, must be
made before the date such gainsharing amount would otherwise
be paid and, once submitted, shall be irrevocable. Gainsharing
Contributions, under this Section 3.2(b) shall be credited to
the Employee's Before-Tax Unmatched Account.
Notwithstanding the foregoing, to the extent that an
Eligible Employee has made the maximum amount of Before-Tax
Contributions permitted under Code Section 402(g) for a Plan
Year, any Gainsharing Contributions elected to be contributed
by the Eligible Employee to the Plan for such Plan Year shall
be treated as After-Tax Contributions in accordance with
Section 3.4.
(c) FlexPlan Contributions. Effective January 1, 1998, the
following provisions shall apply, subject to the annual
limitations specified in this Section 3.2 and Sections 3.6 and
3.7:
(1) An Eligible Employee may elect to contribute any
portion of any amount that is contributed on his
behalf to an Employer-sponsored plan meeting the
requirements of Code Section 125 to this Plan.
(2) FlexPlan Contributions made under this subsection (c)
will be made by payroll withholding with respect to
the first full payroll period for which the election
is effective and shall be credited to the Employee's
Before-Tax Unmatched Account as soon as practicable
thereafter. Elections under this subsection (c) shall
be made in accordance with procedures set forth in
Section 3.5 and, once submitted, shall be
irrevocable.
Notwithstanding the foregoing, to the extent that an
Eligible Employee has made the maximum amount of Before-Tax
Contributions permitted under Code Section 402(g) for a Plan
Year, any FlexPlan Contributions elected to be contributed by
the Eligible Employee to the Plan for such Plan Year shall be
treated as After-Tax Contributions in accordance with Section
3.4.
(d) ADP Test and Account Credits. Notwithstanding the foregoing,
in the event that the Employer estimates that the ADP for all
Highly Compensated Eligible Employees for a given Plan Year
may not satisfy the ADP Test (including the Multiple Use Test,
if applicable), it may, without notice or requirement of
consent by the Participant or the Participant's spouse, take
any of the following actions (or any combination of the
following actions) to assure that the ADP Test is satisfied
for that Plan Year:
(1) The Employer may direct the Trustee to distribute to
the Participant some or all of the Excess
Contributions (together with income allocable to the
Excess Contributions) on or before the end of the
Plan Year following the Plan Year for which they were
made. Such distribution must be specifically
designated
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<PAGE> 30
by the Employer as a distribution of Excess
Contributions (and related income) and shall be made
in accordance with Section 3.8.
(2) The Plan Administrator may exercise its right under
Section 3.1(b)(5) to return contributions for Highly.
Compensated Eligible Employees for the affected Plan
Year.
(e) Conversions. The Employer shall have the right in the
exercise of its absolute discretion to make an additional
contribution under Section 3.1 from its Current or Accumulated
Profits on behalf of all Lower Paid Eligible Employees for
such Plan Year for whom Before-Tax Contributions were made for
the last calendar month of such Plan Year and who are Eligible
Employees on the last day of such Plan Year in an amount which
will result in satisfying the ADP Test for such Plan Year, and
such contribution shall be divided and allocated as of such
date equally among the GNP Basic Contribution Accounts of such
Lower Paid Eligible Employees.
(f) Nonforfeitable Interest. A Participant's interest in
contributions which are credited to his Before-Tax Accounts
shall be nonforfeitable.
(g) Designation. No contribution credited to an Eligible
Employee's Before-Tax Account shall be "designated" as an
"employee contribution" within the meaning of Code Section
414(h)(1).
3.3 GNP MATCHING CONTRIBUTIONS.
(a) Percentage. Subject to the rules set forth in this Section
3.3 and Section 3.6 and 3.7, the Employer shall as of the last
day of each calendar month in each Plan Year make a
contribution from its Current or Accumulated Profits on behalf
of each Eligible Employee on whose behalf contributions
tentatively or actually were credited as of each such date to
his Before-Tax Accounts or After-Tax Accounts which, together
with the forfeitures under Section 5.1(d)(2), shall equal (i)
75% of the contributions (taking into account contributions up
to three percent of such Eligible Employee's Compensation
only) tentatively or actually credited to his Before-Tax
Matched Account and After-Tax Matched Account as of such date,
plus (ii) 50% of the contributions (taking into account
contributions in excess of three percent, but no more than six
percent of such Eligible Employee's Compensation only)
tentatively or actually credited to his Before-Tax Matched
Account and After-Tax Matched Account as of such date.
(b) Insufficient Profits. If the Employer after making the
contribution called for under Section 3.1 has insufficient
Current and Accumulated Profits to make the full contribution
called for under Section 3.3(a), the Employer shall make such
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<PAGE> 31
contributions to the extent of such Current and Accumulated
Profits and the 50% and 75% percentages set forth in Section
3.3(a) shall be reduced accordingly.
(c) ACP Test and Accounting Credits. The GNP Matching
Contributions made on behalf of each Eligible Employee as of
the last day of each calendar month in each Plan Year
tentatively shall be credited by, or at the direction of, the
Employer to his GNP Matching Account as of such date pending
the completion of the ACP Test for such Plan Year.
Notwithstanding the foregoing, in the event that the Employer
estimates that the ACP for all Highly Compensated Eligible
Employees for a given Plan Year may not satisfy the ACP Test
(including the Multiple Use Test, if applicable), it may (and
in the case of subparagraph (A), shall), without notice or
requirement of consent by the Participant or the Participant's
spouse, take any of the following actions (or any combination
of the following actions) to assure that the ACP Test is
satisfied for that Plan Year:
(1) The Employer shall treat tentative GNP Matching
Contributions (subject to an adjustment for
investment gains or losses allocable to such
tentative credit) for Highly Compensated Eligible
Employees for the Plan Year in question which are not
vested as forfeitures under Section 5.1(d)(2) to the
extent necessary to meet the ACP Test.
(2) The Employer may direct the Trustee to distribute to
the Participant some or all of the Excess Aggregate
Contributions (together with income allocable to the
Excess Aggregate Contributions) on or before the end
of the Plan Year following the Plan Year for which
they were made. Such distribution must be
specifically designated by the Employer as
distribution of Excess Aggregate Contributions (and
related income) and shall be made in accordance with
Section 3.8.
A Participant's nonforfeitable interest in the GNP Matching
Contributions (and in the investment gains and losses
allocable to such contributions) actually credited to his GNP
Matching Account shall be determined under Section 5.1.
(d) Notwithstanding the foregoing, a Participant who is a
Part-Time Employee and who fails to complete a Year of Service
in a Plan Year shall not meet the participation requirements
for GNP Matching Contributions for such Plan Year.
3.4 AFTER-TAX CONTRIBUTIONS.
(a) Percentage Contributions. Subject to the rules set forth in
this Section 3.4 and Sections 3.5, 3.6 and 3.7, an Eligible
Employee who has satisfied the participation requirements set
forth in Section 2.2 may elect to contribute from 1% to 16%
of his Compensation, provided that such After-Tax
Contribution, when added to an Eligible
26
<PAGE> 32
Employee's Before-Tax Contributions (if any) under Section
3.2(a) may not exceed 16% of Compensation. Contributions
pursuant to this Section 3.4(a) shall be credited to the
Employee's After-Tax Matched Account up to six percent of
Compensation less any credits to the Employee's Before-Tax
Matched Account. All remaining Contributions pursuant to this
Section 3.4(a) shall be credited to the Employee's After-Tax
Unmatched Account.
All such contributions shall be made by the Employer
exclusively through payroll withholding, and such
contributions shall be transferred by the Employer to the
Trustee as soon as practicable after the end of the payroll
period from which such contributions are withheld.
(b) ACP Test. After-Tax Contributions are subject to the ACP Test.
In the event that the Employer estimates that the ACP (as
defined in Section 1.2(a)) for all Highly Compensated Eligible
Employees for a given Plan Year may not satisfy the ACP Test
(including the Multiple Use Test, if applicable), it may,
without notice or requirement of consent by the Participant or
the Participant's spouse, take any of the following actions
(or any combination of the following actions) to assure that
the ACP Test is satisfied for that Plan Year:
(1) The Employer may refuse to accept, on a prospective
basis, any or all of a Participant's After-Tax
Contributions.
(2) The Employer may direct the Trustee to distribute to
the Participant some or all of the Excess Aggregate
Contributions (together with income allocable to the
Excess Aggregate Contributions) on or before the end
of the Plan Year following the Plan Year for which
they were made. Such distribution must be
specifically designated by the Employer as a
distribution of Excess Aggregate Contributions (and
related income) and shall be made in accordance with
Section 3.8.
The provisions for the return of After-Tax
Contributions under this Section 3.4(b)(2) shall
apply prior to the application of any similar
provisions under Section 3.3(c)(2) for GNP Matching
Contributions.
(c) G-P Plan Contributions. After-Tax Contributions were permitted
pursuant to the G-P Plan (as described in Section 11.1). Such
contributions have been transferred to this Plan. Amounts
contributed to the G-P Plan before 1988 as After-Tax
Contributions and earnings thereon shall continue to be held
in existing fully-vested After-Tax Employee Accounts subject
to the provisions of this Plan applicable to such accounts.
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<PAGE> 33
3.5 ELECTION RULES. Each Eligible Employee who has satisfied the
participation requirements set forth in Section 2.2 may elect to have GNP make
Before-Tax Contributions on such Employee's behalf under Section 3.2 and such
Employee may elect to make After-Tax Contributions under Section 3.4, as
follows:
(a) Elections under Sections 3.2(a) and 3.4(a) with respect to
Percentage Contributions shall be effective with respect to
the first full payroll period of a month following the receipt
of a properly completed Election Form by the Employer on or
before the fifteenth day of the immediately preceding month
(or at any other time and in any other manner, deemed
appropriate by the Plan Administrator). Elections under this
subsection (a) can be changed effective as of the first day of
a subsequent month, provided the Eligible Employee completes
and delivers the related Election Form to the Employer on or
before the fifteenth day of the immediately preceding month
(or at any other time and in any other manner deemed
appropriate by the Plan Administrator). However, an Eligible
Employee shall have the right to revoke elections under
Section 3.2(a) or 3.3(a) during a calendar month, and any such
termination shall become effective as soon as practicable
after the Eligible Employee completes and delivers the related
Election Form to the Employer.
(b) Elections under Sections 3.2(b) with respect to Gainsharing
Contributions shall be made at least two weeks prior to the
date upon which such amounts would otherwise be paid.
Elections made under this subsection (b) shall be irrevocable.
(c) Elections under Sections 3.2(c) with respect to FlexPlan
Contributions shall be made annually no later than the
fifteenth day of December preceding the Plan Year for which
they are effective; provided, however, that Employees first
enrolling in a Code Section 125 plan on any date other than
January 1 of a calendar year (such Employee's "effective
date") may make an election pertaining to FlexPlan
Contributions for the period commencing on their effective
date and ending on the following December 31 by delivering the
appropriate Election Form to the Plan Administrator on or
before the fifteenth day of the month preceding that effective
date. Elections made under this subsection (c) shall be
irrevocable.
(d) The Employer shall have the right to reject any Election Form
(or any other form of election approved by the Plan
Administrator) which is not properly completed or which is not
timely delivered. Any Eligible Employee whose status as such
terminates or whose employment as an Employee terminates shall
be deemed to have completed and delivered an Election Form to
terminate all contributions hereunder as of the date his
status or his employment so terminates.
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<PAGE> 34
3.6 SECTION 415 LIMITATIONS.
(a) Notwithstanding any other provisions of the Plan, the "annual
addition" to a Participant's Accounts shall not exceed the
lesser of (1) and (2) below:
(1) The Maximum Permissible Dollar Amount; and
(2) 25% of the Employee's compensation for the Plan Year.
(b) For purposes of this Section 3.6, the following definitions
shall apply:
(1) the term "annual additions" shall mean the sum of:
(A) Employer Contributions, Employer
contributions to permit investments in
Company Stock under Section 4.1(a) and
forfeitures allocated to the Participant's
Accounts under Sections 3.1, 3.3 and 5.1;
plus
(B) Before-Tax Contributions and After-Tax
Contributions allocated to the Participant's
Accounts under Sections 3.2 and 3.4;
(2) The "Maximum Permissible Dollar Amount" shall be
$30,000, adjusted automatically in accordance with
rulings or regulations issued by the Secretary of the
Treasury as the corresponding limitation in Section
415(c)(1)(A) is adjusted for the cost of living in
accordance with Section 415(d) of the Code.
(3) For Plan Years beginning before January 1, 1998, the
term compensation" under this Section shall mean the
amount paid to the Employee by the Employer during
the Plan Year, excluding any salary reduction
contributions made on the Employee's behalf under any
plan maintained by the Employer pursuant to Code
Section 125 or 401(k).
For Plan Years beginning on or after January 1, 1998,
"compensation" under this Section shall mean the
total compensation paid by the Employer to the
Employee that is reportable as "wages, tips and other
compensation" in Box 1 of the Employee's Federal Wage
and Tax Statement (IRS Form W-2), increased by any
salary reduction contributions made on the Employee's
behalf under any plan maintained by the Employer
pursuant to Code Section 125 or 401(k).
(c) The limitations of this Section 3.6 with respect to any
Participant who at any time has been a participant in any
other defined contribution plan maintained by the Employer
29
<PAGE> 35
or an Affiliate 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.
(d) If the above limitations would be exceeded in any Plan Year,
the Plan Administrator shall take the following actions (which
shall not constitute a termination of Participant
contributions under Section 3.5) at such times as required and
to the extent necessary to prevent the limitations from being
exceeded.
(1) Discontinue or reduce the Participant's After-Tax
Contributions for the Plan Year.
(2) Instruct the Trustee to return all or a portion of
the Employee's After-Tax Contributions (and earnings
and income allocable thereto) made during the Plan
Year.
(3) Discontinue or reduce the Participant's Before-Tax
Contributions, beginning with Before-Tax
Contributions contributed (or to be contributed) to
his Before-Tax Unmatched Account.
(4) Instruct the Trustee to return all or a portion of
the Employee's Before-Tax Contributions (and earnings
and income allocable thereto) made during the Plan
Year, beginning with Before-Tax Contributions
contributed to his Before-Tax Unmatched Account.
(e) If after the application of subsection (d) an amount continues
to exceed the limitations of this Section 3.6 for a Plan Year
(an "excess amount"), the Plan Administrator shall take any of
the following actions, in its discretion, at such times as
required and to the extent necessary to prevent the
limitations from being exceeded.
(1) Allocate and reallocate any excess amount to the
Accounts of all other Participants for that Plan
Year. However, if such allocation or reallocation
results in the limitations of this Section 3.6 being
exceeded for all Participants for any such Plan Year,
the excess amount shall be held unallocated in a
suspense account and allocated and reallocated in the
next and succeeding Plan Years (as necessary) to all
of the remaining Participants in the Plan. For
purposes of this subsection, excess amounts may not
be distributed to Participants or former
Participants.
(2) Reduce Employer contributions for the next Plan Year
(and succeeding Plan Years, as necessary) for that
Participant, if that Participant is covered by the
Plan as of the end of the Plan Year. If that
Participant is not covered by the
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<PAGE> 36
Plan as of the end of the Plan Year, the Plan
Administrator shall hold such excess amounts
unallocated in a suspense account for the Plan Year
and allocate and reallocate such excess amount in the
next Plan Year to all of the remaining Participants
in the Plan. For purposes of this subsection, excess
amounts may not be distributed to Participants or
former Participants.
(3) Hold any excess amount unallocated in a suspense
account and allocate and reallocate such excess to
the Accounts of all other Participants in the next
Plan Year. Such excess shall be used to reduce
Employer contributions for the next Plan Year (and
succeeding Plan Years, as necessary) for all Plan
Participants. For purposes of this subsection, excess
amounts may not be distributed to Participants or
former Participants.
Notwithstanding the foregoing, the provisions of Section 415 of the
Code, as amended, are hereby incorporated by reference for use as a guide to the
interpretation of the foregoing provisions.
3.7 COMBINED PLANS LIMITATION. For Plan Years beginning before
January 1, 2000, this Section 3.7 shall apply.
(a) 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 for them 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.
(b) The term "defined contribution fraction" for a Plan Year shall
mean a fraction, the numerator of which is the sum of annual
additions to the Participant's Accounts for all Plan years as
of the end of the Plan Year and the denominator of which is
the lesser of 125% of the Maximum Permissible Dollar Amount
for the Plan Year and all prior Years of Service, or 140% of
25% of the Participants' total Compensation for that year and
all prior Years of Service.
(c) 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 Dollar Amount 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.
(d) The Participant's projected annual benefit shall be determined
under such retirement plans assuming that his earnings
continue to normal retirement date at the same level as at the
end of the Plan Year and assuming that his service continues
to accrue to his normal retirement date without a break in
service prior to his normal retirement date.
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<PAGE> 37
The terms "earnings," "service," "normal retirement date," and
"break in service" shall have the same meaning as defined in
such retirement plans.
3.8 EXCESS CONTRIBUTIONS AND AGGREGATE CONTRIBUTIONS. Excess
Contributions and excess Aggregate Contributions under Sections 3.2 and 3.3
shall be distributed in accordance with the following procedure:
(a) The total dollar amount of Excess Contributions for each
affected Highly Compensated Eligible Employee is calculated as
described in Section 1.26;
(b) The total dollar amount of all Excess Contributions for all
affected Highly Compensated Eligible Employees is determined.
(c) The Before-Tax Contributions of the Highly Compensated
Eligible Employee with the highest dollar amount of Before-Tax
Contributions for the Plan Year shall be reduced by the amount
required to cause that Highly Compensated Eligible Employee's
Before-Tax Contributions to equal the dollar amount of the
Before-Tax Contributions of the Highly Compensated Eligible
Employee with the next highest dollar amount of Before-Tax
Contributions. This amount is then distributed to the Highly
Compensated Eligible Employee with the highest dollar amount.
However, if a lesser reduction, when added to the total dollar
amount already distributed under this step, would equal the
total Excess Contributions, the lesser reduction amount shall
be distributed.
(d) If the total dollar amount distributed is less than the total
Excess Contributions for the Plan Year for all affected Highly
Compensated Eligible Employees, step (c)is repeated until the
total dollar amount distributed equals the total Excess
Contributions for the Plan Year.
(e) Parallel steps taken in subsections (a) through (d) for Excess
Contributions shall be taken to distribute any Excess
Aggregate Contributions determined in accordance with Section
1.25 under the Plan for a Plan Year.
After Excess and Excess Aggregate Contributions, if any, have been
distributed using the method described above, the multiple use test of Section
401(m) (9) of the Code is applied. For purposes of Section 401(m)(9) of the
Code, if a corrective distribution of Excess Contributions has been made, or a
recharacterization has occurred, the Actual Deferral Percentage for Highly
Compensated Eligible Employees is deemed to be the largest amount permitted
under Section 401(k) (3) of the Code. Similarly, if a corrective distribution of
Excess Aggregate Contributions has been made, the ACP for Highly Compensated
Eligible Employees is deemed to be the largest amount permitted under Section
401(m) of the Code.
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<PAGE> 38
3.9 CONTRIBUTIONS UPON RETURN FROM MILITARY LEAVE. A Participant
returning from a Military Leave of Absence shall be entitled to enter into one
or more Compensation reduction agreements, pursuant to which the Participant may
make up the Before-Tax Contributions and After-Tax Contributions (excluding
interest and earnings on such contributions) the Participant would have been
entitled to make had the Participant worked for the Company and entered into
such Compensation reduction agreements during the period of Military Leave of
Absence. To the extent of such make-up contributions allocated to the
Participant's Before-Tax or After-Tax Matched Account, the Company shall make
GNP Matching Contributions in accordance with Section 3.3, which amounts shall
be credited to the Participant's GNP Matching Account for such period of
Military Leave of Absence. Notwithstanding the foregoing, all contributions made
by a Participant and the Company under this Section 3.9 shall be subject to the
provisions of this Article III and be determined in accordance with and subject
to the limitations of USERRA.
ARTICLE IV
INVESTMENT AND ALLOCATION OF INVESTMENT GAINS AND LOSSES
4.1 INVESTMENT FUNDS. The Trust Fund initially shall be subdivided
into, and Participant and Employer Contributions shall be invested by the
Trustee, either as directed under the Plan or as directed by the Participant, in
one or more Investment Funds, which shall include the following:
(a) FUND A. The Plan Sponsor Stock Fund, which invests primarily
in shares of Bowater Incorporated common stock. However, a
small percentage of the Fund is invested in money market
instruments to facilitate daily cash transactions. Cash
dividends received on shares of Bowater Incorporated stock
held by this Fund will be automatically reinvested in the
Fund. Accounts in this Fund shall segregate, separately
account for and respectively consist of shares of Bowater
Incorporated stock attributable to Employer Contributions and
Participant Contributions. All Participant Contributions
initially invested directly in this Fund pursuant to Section
4.2(b) shall be treated as if invested at 95% of market
value, with the Employer making the necessary contributions to
effect allocations at full fair market value.
(b) Additional Investment Funds: There may be established by the
Trustee at the direction of the Board 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. Any such additions,
modifications or deletions shall be communicated to
Participants.
(c) Temporary Investment. Pending investment and reinvestment, the
Trustee may invest temporarily all or any part of the
Investment Funds and such other Investment Funds as may be
established by the Trustee at the direction of the Plan
Sponsor or its designee pursuant to the provisions of the Plan
in short and medium term securities including but not limited
to commercial paper, notes of finance companies
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<PAGE> 39
or in obligations of the U. S. Government or any
instrumentality or agency thereof. The Plan Sponsor or its
designee may from time to time specify additional or different
investment vehicles for the temporary investment of funds by
the Trustee, or may direct the Trustee in the temporary
investment of funds. The Trustee may invest all or any part of
any Investment Fund directly in the securities and obligations
authorized for the respective Investment Fund or through the
medium of any common, collective or commingled trust fund
which is invested principally in securities and obligations
authorized for the respective Investment Fund.
4.2 ELECTIONS.
(a) Investment Elections By Participants. Prior to September 30,
1998, each Participant's GNP Basic Contribution Account shall
be invested exclusively in the Interest Income Fund, and no
Participant shall have the right to elect to invest the
Account in any other Investment Fund. Each Participant must
elect by "Appropriate Notice" (as hereinafter defined) to have
all of his GNP Basic Contribution Account (after October 1,
1998) Employee Contributions and GNP Matching Contributions
invested in any one of the available Investment Funds or among
such Funds, with the Investment in each Fund being a whole
number percentage of such contributions and the sum of such
percentages equal to 100%. "Appropriate Notice" means, for
these purposes, written, telephonic or other electronic
communication directed to the Plan Administrator or as the
Plan Administrator specifies in rules or procedures uniformly
applicable to all similarly situated Participants. A GNP Basic
Contribution Account, a GNP Matching Account, a Before-Tax
(Matched and Unmatched) Account and an After-Tax Employee
Account shall be established for the Participant in each of
the Investment Funds in which contributions are invested on
his behalf. Contributions and earnings thereon as to which no
current, valid investment direction exists may be invested as
the Trustee, in its discretion, shall deem appropriate;
provided, however, that in the event no trustee has agreed to
undertake such investment responsibility, such contributions
and earnings shall be temporarily invested in one or more of
the investment vehicles authorized in the preceding paragraph
for temporary investment of funds, until a valid investment
direction is obtained.
(b) Changes in Current Investment Elections. A Participant may,
by giving prior Appropriate Notice (as defined in subsection
(a) above), change his investment election with respect to
contributions received thereafter. Changes in investment
elections must be expressed as revised whole number
percentages of contributions, totaling 100%. A Participant
may, by giving prior Appropriate Notice elect to transfer all
or part (specified as a whole number 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 telephonic or other
electronic investment
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<PAGE> 40
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).
4.3 ALLOCATION OF INVESTMENT GAINS AND LOSSES. The investment
gains and losses (whether realized or unrealized) for each Investment Fund shall
be determined by, or at the direction of, the Plan Administrator as of each
Valuation Date, and such investment gains shall be credited to each Account (to
the extent invested in each such Investment Fund) and such investment losses
shall be charged against each Account (to the extent invested in each such
Investment Fund) as of such Valuation Date in the same proportion that the
balance to each such Account (to the extent invested in such Investment Fund)
bears to the balance of all Accounts (to the extent invested in such Investment
Fund). Each Account balance shall be determined for this purpose based on the
balance actually or tentatively credited to such account as of the immediately
preceding Valuation Date.
ARTICLE V
DISTRIBUTIONS, WITHDRAWALS AND LOANS
5.1 DISTRIBUTION EVENTS.
(a) Retirement. A Participant whose employment as an Employee
terminates on or after the date he reaches age 60 shall be
deemed to have retired under this Plan, and the GNP Matching
Account of a Participant who is an Employee on the date he
reaches age 60 shall become nonforfeitable on such date. The
Account of a Participant who retires under this Plan shall be
distributed in accordance with the rules set forth in Section
5.4.
(b) Disability.
(1) Nonforfeitable. If a Participant's employment as an
Employee terminates because he is treated as being
"disabled" under this Plan, his GNP Matching Account
shall become nonforfeitable on the date his
employment so terminates, and his Account shall be
distributed to him in accordance with the rules set
forth in Section 5.4.
(2) Disabled. A Participant shall be treated as
"disabled" under this Plan if his employment as an
Employee terminates as a result of an illness, injury
or other condition which makes that Participant
eligible to receive benefits under the Bowater
Incorporated Salaried Employees' Long-Term Disability
Plan or which would, in the Plan Administrator's
judgment, make such Participant eligible for such
benefits if he participated in such plan.
(3) Recovery. If a former Participant recovers and is
reemployed as an Eligible Employee after his Account
was distributed to him by reason of his being
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<PAGE> 41
treated as "disabled" under this Plan, his
nonforfeitable interest in any GNP Matching,
Contribution Account thereafter established for his
benefit shall be determined without regard to the
fact that his prior GNP Matching Account became
nonforfeitable under this Section 5.1(b).
(c) Death. If a Participant dies while an Employee, his GNP
Matching Account shall become nonforfeitable as of his date of
death, and his Account shall be distributed to his Beneficiary
in accordance with the rules set forth in Section 5.4.
(d) Other Termination of Employment.
(1) Nonforfeitable Interest. If a Participant's
employment as an Employee terminates for any reason
other than retirement, disability or death under this
Section 5.1, his nonforfeitable percentage interest
in his GNP Matching Account shall equal 20%
multiplied by the number of Years of Service which he
completed on or before the date his employment as an
Employee so terminated or 100%, whichever is less.
Such a Participant's nonforfeitable percentage
interest in his GNP Matching Account and in all his
other Accounts shall be distributed as a result of
his termination of employment in accordance with the
rules set forth in Section 5.4.
(2) Forfeitable Interest. If under this Section 5.1(d)
the nonforfeitable percentage interest of a
Participant in his GNP Matching Account is less than
100% on the date his employment as an Employee
terminates, his remaining Forfeitable percentage
interest in such account shall be treated as a
forfeiture as of the first Comprehensive Valuation
Date which immediately follows the date his
employment so terminates or, if his employment
terminates on a Valuation Date, as of such Valuation
Date, and such forfeiture shall become part of the
general GNP Matching Contributions made under Section
3.3 on or after that date. If a Participant has no
nonforfeitable interest in his GNP Matching Account,
he shall be deemed to have received a distribution of
his benefits (which are deemed to have a value of
zero) as of the last day of the Plan Year in which
his employment terminated.
(3) Reemployment as Employee. If a Participant or a
former Participant who is described in Section
5.1(d)(2) is reemployed as an Employee prior to
incurring a Break in Service which equals or exceeds
five years, the Forfeitable percentage interest in
his GNP Matching Account which was treated as a
forfeiture under Section 5.1(d)(2) and the investment
gains or losses which would have been allocable to
such interest if such interest had been invested
(from the Valuation Date as of which it was treated
as a forfeiture through the Valuation Date as of
which restoration is made) in U.S. Treasury Bills of
the longest duration available as of the deemed date
of
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<PAGE> 42
purchase (deemed to be purchased as of the Valuation
Date of forfeiture and sold as of the Valuation Date
as of which restoration is made, and reinvested at
each intervening maturity date) (or deemed to have
been invested in any other manner, or in such
successor fund as shall be designated by the Plan
Sponsor) shall be restored by the Plan Administrator.
Such restoration shall be made as of the Valuation
Date which immediately, follows the date he is
reemployed as an Employee or, if he is reemployed on
a Valuation Date, as of such Valuation Date, and such
restoration shall be credited as of such date to his
GNP Matching Account by, or at the direction of, the
Plan Administrator. After a Participant's GNP
Matching Account has been restored, his
nonforfeitable percentage interest in such account
thereafter shall be determined for purposes of this
Section 5.1(d) under the formula,
X = P (AB + D) - D, where:
X = The dollar amount, if any, of his
nonforfeitable percentage interest
in his GNP Matching Account;
P = The Participant's nonforfeitable
percentage interest on the date his
employment as an Employee thereafter
terminates;
D = The dollar amount initially
distributed to the Participant under
this Section 5.1(d) from his GNP
matching Account; and
AB = Such amount of money, if any, as
evidenced by the last balance posted
to his GNP Matching Account.
(4) Separation From Service. No Participant's employment
shall be deemed to have terminated under this Section
5.1(d) unless he has a "separation from service"
within the meaning of Code Section 401(k)(2)(B).
5.2 WITHDRAWALS.
(a) Before-Tax Accounts. Subject to paragraphs (1) and (2) below
and to Section 5.3(f), a Participant who is then an Employee
may request a "hardship" withdrawal from the contributed
balance of his Before-Tax Accounts (excluding from the balance
available for "hardship" withdrawal the earnings on such
contributions) by properly completing and delivering to the
Plan Administrator an Election Form together with such
additional information to support his request as the
Participant or the Plan Administrator deems necessary or
appropriate. Hardship distributions under this subsection
shall be made only if the Employee demonstrates to the
Employer that the distribution is on account of immediate and
heavy financial need and is necessary to satisfy such
financial need. The Plan Administrator will determine that
such request
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<PAGE> 43
is based on a "hardship" within the meaning of Code Section
401(k) by applying the following standards:
(1) The distribution shall be deemed "on account of
immediate and heavy financial need" only if it is on
account of:
(A) Medical expenses described in Code Section
213(d) incurred by the Employee, the
Employee's spouse or any dependent(s) of the
Employee (as defined in Code Section 152);
(B) Purchase (excluding mortgage payment or
refinancing) of a principal residence for
the Employee;
(C) Payment of tuition and related educational
fees for the next quarter, semester or
twelve months of post-secondary education
for the Employee or the Employee's spouse,
children or dependents; or
(D) The need to prevent the eviction of the
Employee from his principal residence or the
foreclosure on the mortgage of the
Employee's principal residence.
(2) The distribution shall be deemed "necessary to
satisfy" a financial need described in paragraph (1)
above if the following requirements are satisfied:
(A) The distribution is not in excess of the
amount of the financial need (including any
amounts necessary to pay any federal, state
or local income taxes or penalties
reasonably anticipated to result from the
distribution);
(B) The Employee has obtained all distributions
(other than hardship distributions) and all
non-taxable loans available under all
qualified retirement plans administered by
the Plan Sponsor;
(C) The Employee shall not be eligible to make
Before-Tax or After-Tax Contributions to
this Plan pursuant to Section 3.2 for 12
consecutive months following the month of
the distribution; provided, however, that
such contributions may recommence during the
month following the end of the 12-month
suspension period (unless the suspension
period is extended in connection with a
subsequent hardship withdrawal) or
thereafter if the Employee files on a timely
basis a completed Election Form in
accordance with Section 3.5;
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<PAGE> 44
(D) The Employee's Before-Tax Contributions
pursuant to Section 3.2 for the Plan Year
following the Plan Year of the distribution
may not exceed the limit on such
contributions specified under Section 3.2(a)
for such following Plan Year reduced by the
Employee's Before-Tax Contributions for the
Plan Year of the distribution.
Such withdrawal shall be effected as of a
Valuation Date which follows the date the
Plan Administrator grants such request as
soon as practicable after such date.
(b) After-Tax Employee Account. Subject to such uniform and
nondiscriminatory rules as the Plan Administrator may
establish from time to time and to Sections 5.3(c) and 5.3(i),
a Participant may request a withdrawal under this Section
5.2(b) from his After-Tax Employee Account by properly
completing and delivering to the Plan Administrator an
Election Form (or such other form of request as the Plan
Administrator shall approve for use by all Participants
similarly situated) on or before the Valuation Date as of
which the Participant desires to make such withdrawal, and the
requested withdrawal shall be made as of such date. Such a
withdrawal may be made from a Participant's After-Tax Employee
Account in accordance with such uniform and nondiscriminatory
rules as the Plan Administrator may establish from time to
time. Withdrawals under this Section 5.2(b) shall be permitted
only once per Plan Year and shall be charged to principal or
income of the sub-account in accordance with the provisions of
Code Section 72(e)(8).
(c) The taxable portion of any amount withdrawn in accordance with
this Section 5.2 is an "eligible rollover distribution" as
defined in Section 5.4(d), eligible for direct rollover as set
forth in Section 5.4(d).
5.3 LOANS. Any Active Participant or inactive Participant who is
an "interested party" as defined in Section 3(14) of ERISA may apply for a loan
from the Plan in lieu of a withdrawal. To obtain a loan, such Participant must
submit a written application for approval on a form and in such manner as may be
prescribed by the Plan Administrator.
Such loan (1) must be at least $1,000, and (2) shall not exceed the
lesser of (i) $50,000, reduced by the excess of the highest outstanding balance
of loans from the Plan during the one-year period ending on the day before the
date the loan is made over the outstanding balance of the loans from the Plan on
the date the loan is made, or (ii) 50% of the Participant's vested Account under
the Plan.
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<PAGE> 45
In addition to such rules and regulations as the Plan Administrator may
adopt, all loans shall comply with the following terms and conditions:
(a) The Participant shall execute a promissory note and assign to
the Plan his rights to his Accounts to the extent necessary to
pay off the loan in the event of default.
(b) The term for repaying the loan shall be at least 12 months but
not more than five years; provided, however, that a loan used
to acquire any dwelling unit which, within a reasonable period
of time, is to be used (determined at the time the loan is
made) as the principal residence of the Participant shall
provide for periodic repayment over a reasonable period of
time not to exceed 15 years,
(c) Loan disbursements shall be made from the Participant's
Investment Funds in proportion to his vested balance in the
Investment Funds. A loan shall be considered to be an
investment of the Participant's interest in the Plan which has
been directed by the Participant, and the evidence of debt
shall be held as an asset in an account maintained for the
borrowing Participant. Repayments of principal and interest
shall be reinvested in accordance with the Participant's
then-current investment election.
(d) The loan shall bear interest at a reasonable rate as
determined by the Plan Administrator. The Plan Administrator
shall not discriminate among Participants in the matter of
interest rates, but loans granted at different times may have
different interest rates if, in the opinion of the Plan
Administrator, the difference in rates is justified by
economic conditions.
(e) The loan shall provide that a Participant shall repay his loan
by payroll deductions that will amortize the loan in level
payments over its term, but shall also provide that a
Participant may repay the remaining balance of the loan in a
single lump sum through a withdrawal from the Plan used in
whole or in part for such repayment or through a cash payment.
If a Participant is absent from work with less than full
compensation, payroll deductions will continue as long as his
pay is sufficient to cover the amounts due under the terms of
the loan. If the Participant's compensation is insufficient to
cover the regular payments due, the Participant shall make
arrangements with the Plan Administrator for repaying
principal and interest on a current basis.
(f) A Participant who qualifies for a hardship withdrawal under
Section 5.2 may withdraw from the Plan to the extent that such
withdrawal will not result in his loan exceeding the maximum
limitations under this Section, unless the Participant
authorizes the Plan Administrator to apply a sufficient amount
of such withdrawal to reduce the loan to the maximum
limitations after such withdrawal.
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<PAGE> 46
(g) A Participant shall not be approved for a loan under this
Article until any prior loan has been completely amortized.
(h) A Participant will be deemed to have defaulted on his loan
upon the earlier of:
(i) separation from service due to retirement, death,
total and permanent disability, layoff or any other
reason; or
(ii) failure to make a loan repayment when due.
(i) Upon default, the Plan Administrator may take any action
(including reinstatement of the loan upon receipt of amounts,
if any, in arrears and resumption of timely, regular repayment
installments) permitted by law and consistent with the
provisions of the Plan and its continued qualification to
collect the balance due on the loan (or see to the application
of collateral to the payment thereof). No amount shall be
distributed to a Participant in default on an outstanding loan
until the loan is repaid in full. If the amount of any such
distribution is insufficient to repay the loan, the
Participant or his Beneficiary shall be liable for repaying
any amount still outstanding.
(j) Nothing in this Section shall preclude the Plan Administrator
from declaring a moratorium on the approval of loans or from
amending this Section subject to applicable regulations issued
by the Internal Revenue Service.
5.4 FORM AND TIMING OF DISTRIBUTIONS.
---------------------------------
(a) Election of Benefits. On or before a Participant's retirement,
elected benefit commencement date, or "required beginning
date" (as defined in Section 5.4(b)(2)(D)) he shall notify the
Plan Administrator of his election that benefits due to him
upon termination of employment be paid or made available in
accordance with one or more of the following methods:
(1) with respect to all Participants: by a lump sum
payment in cash or, with respect to the Plan Sponsor
Stock Fund, upon the request of the Participant, in
kind, plus the cash equivalent of the fair market
value of any fractional share of Plan Sponsor common
stock; or
(2) with respect only to Participants who will have
attained at least age 59-1/2 at the time benefit
payment commences: in annual installments over a
period not to exceed ten years, provided such period
does not exceed the greater of the life expectancy of
the Participant or the joint and last survivor life
expectancy of the Participant and his Beneficiary the
amount of each such installment to be determined by
dividing the Participant's Vested Value by
41
<PAGE> 47
the number of annual installments which remain to be
made at the time a particular installment is to be
paid.
A Participant may change his election of benefits by filing a
new election at any time prior to his benefit commencement
date.
Notwithstanding the foregoing, if the Participant's Account
balance at the time of any distribution exceeds $3,500
($5,000, effective January 1, 1998), then neither that
distribution nor any subsequent distribution shall be made to
the Participant at any time before he attains age 70-1/2
without his or her consent (which age 70-1/2 distributions
shall be made in accordance with paragraph (b)(3)). No such
consent shall be valid unless the Participant receives a
general description of the material features and an
explanation of the value of the form of benefit available
under the Plan. In addition, the Participant must be informed
of his right to defer receipt of the payment or distribution.
The Plan Administrator shall deliver such written notice to
the Participant during a period beginning no less than 30 days
and no more than 90 days before the Participant's date of
commencement of benefits. The written consent of the
Participant to the payment or distribution shall not be made
before the Participant receives the notice and shall not be
made more than 90 days before his or her date of commencement
of benefits. Notwithstanding the foregoing, a distribution may
commence less than 30 days after the notice required under
Section 1.411(a)-11(c) of the Treasury Regulations is given,
provided that (i) the Plan Administrator clearly informs the
Participant that the Participant has a right to a period of at
least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and (ii) the
Participant, after receiving the notice, affirmatively elects
a distribution.
(b) 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 and
shall be distributable thereafter at the written request of
the Participant (or, where applicable, his Beneficiary or
alternate payee).
(1) 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:
(A) The Participant's attainment of age 65;
(B) The tenth anniversary of the year in which
the Participant commenced participation in
the Plan; or
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<PAGE> 48
(C) The Participant's termination of employment
with the Employer or an Affiliate.
(2) Notwithstanding any other provision 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 (3)); or (ii) will
be distributed under Section 5.4(a)(2)
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 5.4(c), the entire interest of the
Participant will be distributed in
accordance with Section 5.4(a) at the end of
the calendar year containing the fifth
anniversary of the Participant's death.
(3) For purpose of this section, the term "required
beginning date" means:
(A) for Plan Years beginning prior to January 1,
1997, April 1 of the calendar year following
the calendar year in which the Employee
attains age 70-1/2;
(B) for Plan Years beginning on or after January
1, 1997:
(1) for a Participant who is not a five
percent (5%) owner (as defined
under Code Section 416), April 1 of
the calendar year following the year
in which occurs the later of the
Participant's: (A) termination of
Employment with the Employer and all
Affiliated Companies, and (B)
attainment of age 70-1/2; and
(2) for a Participant who is a five
percent (5%) owner, 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.
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<PAGE> 49
Notwithstanding the foregoing, if a
Participant who is not a five percent (5%)
owner attained age 70-1/2 on or after
January 1, 1996 and before January 1, 1999,
and is still employed by the Employer or an
Affiliated Company on April 1 of the
calendar year following the year in which he
or she attained age 70-1/2, such Participant
may elect to commence the distribution of
the Vested Value of his or her Accounts
effective as of April 1 of the calendar year
following the calendar year in which he or
she attained age 70-1/2 or to delay the
commencement of distributions until the
termination of his or her employment.
(c) 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
5.4(a)(2), 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 within 90 days of the Participant's death. The
Beneficiary of a deceased Participant other than as noted
above shall elect to receive the undistributed value of his
Accounts under one of the methods in Section 5.4(a) by an
election in writing filed with the Plan Administrator within
180 days of the Participant's death, except that the maximum
period in Section 5.4(a)(2) 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 5.4(b)(2)(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.
(d) Direct Rollover. Any Eligible Rollover Distribution under the
Plan 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 Code Section 402
and the regulations thereunder and as hereinafter provided.
(1) 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. 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.
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<PAGE> 50
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.
(2) For purposes of this section, the following
definitions shall apply:
(A) A "Direct Rollover" is a payment by the Plan
to the Eligible Retirement Plan specified by
the Distributee;
(B) 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;
(C) 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 these requirements.
(D) An "Eligible Rollover Distribution" is any
distribution from this Plan of all or any
portion of the balance to the credit of the
Distributee, except for distributions (or
portions thereof) which are: (i) 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; (ii) required
45
<PAGE> 51
under Code Section 401(a)(9) (relating to
the minimum distribution requirements); or
(iii) the portion of any distribution that
is not includible in gross income
(determined without regard to the exclusion
for net unrealized appreciation in employer
securities described in Code Section
402(e)(4)).
(e) Claims. Subject to the distribution deadlines set forth in
Section 5.4(b), no Account shall become payable unless and
until a claim for payment is completed and filed on an
Election Form with the Plan Administrator, unless the Plan
Administrator acting in its absolute discretion elects to
direct the distribution of such Account in the absence of such
a claim. All claims shall be processed in accordance with the
claims procedure described in the Summary Plan Description for
this Plan. Furthermore, if the distribution of an Account is
called for under this Section 5.4 and the Plan Administrator
is unable to locate the Participant or his Beneficiary after
sending written notice to his last known address and to the
United States Social Security Administration and no claim is
filed for such Account under this Section 5.4(e), the Plan
Administrator shall have the right to presume that the
Participant and his Beneficiary are dead and to treat such
Account as a forfeiture under Section 5.1(d)(2), subject to
reinstatement in the event that the Participant or his
Beneficiary subsequently files a claim for such Account.
ARTICLE VI
FIDUCIARIES
The following parties are Fiduciaries of the Plan:
(a) The Employer;
(b) The Plan Sponsor;
(c) The Trustee; and
(d) Any committee or individual appointed by the Employer or the
Plan Sponsor as Plan Administrator or to whom discretionary
administrative authority or responsibility with respect to the
Plan has been delegated by the Employer or the Plan Sponsor.
ARTICLE VII
PLAN ADMINISTRATION
7.1 ADMINISTRATION BY FIDUCIARIES.
------------------------------
(a) The Plan Administrator shall be the Named Fiduciary.
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<PAGE> 52
(b) If a Plan Administrator has not been appointed, or ceases for
any reason to serve, the Plan Sponsor shall function as the
Plan Administrator until a Plan Administrator (or successor)
is appointed.
(c) The responsibilities of each fiduciary may be specified by the
Employer or the Plan Sponsor in writing. If no such delegation
is made by the Employer or Plan Sponsor, the fiduciaries may
allocate responsibilities among themselves in writing and
notify the Employer and the Plan Sponsor that they have done
so, specifying in such notification the responsibilities of
each fiduciary. If the fiduciaries provide a copy of such
notification to the Trustee, the Trustee shall thereafter
(until such time as the Employer, the Plan Sponsor, or the
fiduciaries deliver to the Trustee a written revocation of
such allocation) accept and be justified in relying upon any
documents executed by the appropriate fiduciary pursuant to
the allocation of responsibilities disclosed in such
notification.
(d) 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 (c), above.
7.2 RESPONSIBILITIES OF THE PLAN SPONSOR. The Plan Sponsor shall
have the following powers and duties, in its sole discretion, with respect to
the Plan.
(a) To appoint the individuals and members of any committee
created to exercise any responsibility with respect to the
Plan;
(b) To terminate the Plan in whole or in part pursuant to the
procedures provided hereunder;
(c) To delegate any of the fiduciary responsibilities under the
Plan to any individual, committee, or entity (including the
Employer) it may designate; provided, 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.
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<PAGE> 53
7.3 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 Plan Sponsor's Board or its
delegate to, and accepted by, the Trustee.
7.4 RESPONSIBILITIES OF THE PLAN ADMINISTRATOR. The Plan
Administrator shall be responsible for and shall discharge all duties and
obligations imposed on a Plan Administrator by ERISA and the Code. The Plan
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 discretion, powers and
duties with respect to the Plan:
(a) To establish and enforce such rules, regulations and
procedures as the Plan Administrator shall deem necessary or
proper for the efficient administration of the Plan;
(b) To interpret the Plan, the Plan Administrator's interpretation
thereof in good faith to be final and conclusive;
(c) To decide all questions of fact concerning the Plan and the
eligibility of any Employee to participate in or receive
benefits from the Plan;
(d) To compute the amount of benefits which shall be payable to
any Participant, retired Participant or Beneficiary in
accordance with the provisions of the Plan, and to determine
the person or persons to whom such benefits shall be paid;
(e) To advise the Trustee in writing with respect to all benefits
which become payable under the terms of the Plan and to direct
the Trustee to pay such benefits from the Trust Fund;
(f) To submit annually to the 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;
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<PAGE> 54
(h) To appoint any accountant, attorney, consultant or other
professional; and
(i) To appoint individuals to perform administrative functions and
to determine their powers and responsibilities as the Plan
Administrator may, subject to this Article VII and the
requirements of ERISA, determine. Any such allocation or
delegation shall be periodically reviewed by the Plan
Sponsor's Board or its designee.
7.5 DELEGATION OF DUTIES. Any committee established by the Plan
Sponsor or at its direction or by its designee may appoint subcommittees and
determine their powers; and the Plan Sponsor and its designees and their
designees may allocate among themselves or may delegate to another person or
persons such of the fiduciary duties as they may in their sole discretion
determine. Any such allocation or delegation shall be periodically reviewed by
the Board.
The Plan Sponsor, the Plan Administrator and their respective
designees, agents, officers and employees and any committees established by the
Plan Sponsor or at its direction or by its designee, shall be entitled to rely
upon all certificates and reports made by the accountant or consultant and upon
all opinions given by legal counsel; the Plan Sponsor, the Plan Administrator,
and their respective designees, agents, officers and employees and any
committees established by the Plan Sponsor or at its direction or by its
designee, shall be fully protected in respect to any action taken or suffered by
them in good faith and acting as a prudent person would act in like
circumstances in reliance upon such certificate, report or the advice or opinion
of such accountant, consultant or counsel, and all action so taken or suffered
shall be conclusive upon each of them and upon all Participants, retired
Participants, surviving spouses and Beneficiaries.
7.6 COMMITTEE ACTION. Unless otherwise directed by or at the
direction of the Plan Sponsor, a majority of the members of any committee
established by or at the direction of the Plan Sponsor or by its designee shall
constitute a quorum. Decisions with a quorum present shall be by majority vote.
The action of a majority expressed in writing without a meeting shall constitute
the action of a committee and shall have the same effect as if assented to by
every member.
7.7 INDIVIDUAL INDEMNIFICATION. To the extent permissible under
ERISA, the Plan Sponsor shall indemnify each member of the Board or Employer's
Board, each member of any committee established by or at the direction of the
Plan Sponsor or its designee, and the Plan Administrator or any of its
delegates, 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 or omission performed by them or any
one of them as a director, committee member or Plan Administrator, or designee
or delegate thereof, as the case may be, while acting in good faith and
exercising his judgment for the best interest of the Plan.
Promptly after receipt by an indemnified party under this section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Plan Sponsor, notify the Plan
Sponsor of the commencement thereof, and the omission so to notify the Plan
Sponsor will relieve it from the liability hereunder, but not from any other
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liability which it may have to such person. The Plan Sponsor shall be entitled
to participate at its own expense in the defense or to assume the defense of any
action brought against any party indemnified hereunder.
In the event the Plan Sponsor elects to assume the defense of any such
suit, such defense shall be conducted by counsel chosen by it and reasonably
satisfactory to the indemnified party, and the indemnified party shall bear the
fees and expenses of any additional counsel retained by him.
7.8 EXPENSES. Any expenses reasonably incurred by the Plan
Administrator or the member of any committee in the performance of their duties
shall be paid by the Employer. Such reasonable expenses include the Employer's
securing insurance to protect them from personal liability resulting from their
actions taken in a fiduciary capacity with respect to this Plan. All reasonable
expenses incurred in connection with the administration of the Plan, including
(without limitation) the compensation of the Trustee, administrative expenses,
any investment management charges and proper charges and disbursements of the
Trustee and compensation and other expenses and charges of any counsel,
accountant, specialist or other person who shall be retained by the Employer in
connection with the administration of the Plan shall be paid from the Trust
Fund; provided, that the Employer, in its sole discretion, may elect to pay any
such expenses; and provided further, that the Employer's payment of any such
expenses for any Plan Year shall not require the Employer to pay any such
expenses for any subsequent Plan Year.
ARTICLE VIII
TRUST FUND AND TRUSTEE
The Trust Fund shall be held, administered, controlled and invested by
the Trustee subject to the terms of the Trust Agreement.
ARTICLE IX
AMENDMENT AND TERMINATION
9.1 AMENDMENT. The Plan Sponsor reserves the right at any time and
from time to time, and retroactively if deemed necessary or appropriate to
conform with governmental regulations or other policies, to modify or amend in
whole or in part any or all of the provisions of the Plan; provided, that no
such modification or amendment shall make it possible for any part of the funds
of the Plan to be used for, or diverted to, purposes other than for the
exclusive benefit of Participants or their Beneficiaries; 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.
9.2 MERGER, CONSOLIDATION OR TRANSFER OF ASSETS. The Plan shall
not merge or consolidate with, or transfer its assets or liabilities to any
other plan or entity unless each Participant would, if the surviving plan or
entity then terminated, receive a benefit immediately after the merger,
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consolidation or transfer which is equal to or greater than the benefit he would
have been entitled to receive if the Plan had terminated immediately before the
merger, consolidation or transfer. Any such merger, consolidation or transfer
shall be accomplished in accordance with applicable regulations of the Internal
Revenue Service.
9.3 TERMINATION. The Plan is purely voluntary on the part of the
Plan Sponsor and each Employer, and the Plan Sponsor reserves the right to
terminate or completely discontinue contributions under the Plan, and terminate
the Trust Agreement and the trust hereunder. Upon a complete or partial
termination of the Plan, or complete discontinuance of contributions hereunder,
the value of the Account of each Participant affected by such termination or
discontinuance shall be fully vested, and payment of benefits shall be made to
such Participants or their Beneficiaries either upon such termination or upon
the termination of employment of the respective Participants, at the discretion
of the Plan Administrator, in the same manner as on termination of employment
under Section 5.4. 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 5.1(d)(2) shall be credited ratably to the
Accounts of all Participants in proportion to the amounts of GNP Basic
Contributions credited to their respective GNP Basic Contribution Account during
the current calendar year, or during the prior calendar year if no GNP Basic
Contributions have been made during the current calendar year.
9.4 WITHDRAWAL OF AN EMPLOYEE. Subject to the requirements of
ERISA and the Code, any one or more of the Employers may, with the consent of
the Plan Sponsor, terminate its participation in and withdraw from the Plan by
giving six months' advance written notice to the Plan Sponsor of its or their
intention to withdraw, unless a shorter notice shall be agreed to by the Board.
Upon such withdrawal, the Plan Sponsor 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. 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.
9.5 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 Board's designee, 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.
ARTICLE X
MISCELLANEOUS
10.1 CONSTRUCTION. This Plan shall be construed, regulated and
administered in accordance with the laws of the State of Delaware to the extent
that such laws are not preempted by
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federal law. The Plan and the Trust shall be construed so as to qualify under
sections 401(a), 401(k) and 501(a) of the Code.
10.2 SPENDTHRIFT CLAUSE. Subject to Sections 5.3 and 10.11, no
Account, benefit, payment or distribution under this Plan shall (except to the
extent permitted by law) be subject to the claim of any creditor of a
Participant or Beneficiary, or to any legal process by any creditor of such
person, and no Participant or Beneficiary shall have any right to alienate,
commute, anticipate or assign all or any portion of his Account, benefit,
payment or distribution under this Plan. Except that, effective January 1, 1998,
such prohibition shall not apply to the offset of any Participant's Account
against any amount the Participant is required to pay on account of a breach of
fiduciary duty to, or a criminal act taken against, the Plan, to the extent
permitted under Section 401(a)(13) of the Code.
10.3 LEGALLY INCOMPETENT. 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 an 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 or legal
representative of such person, or to a person who has custody or who has assumed
responsibility for the care of such person. Any payments so made under this
section at the direction of the Plan Administrator shall be a complete discharge
of the liabilities of the Plan therefor.
10.4 BENEFITS SUPPORTED ONLY BY TRUST FUND. Any person having any
claim for any benefit under the Plan shall look solely to the assets of the
Trust Fund for the satisfaction of such claim. In no event will the Plan
Sponsor, the Plan Administrator, an Employer or the Trustee, or any of their
employees, officers, Participants or their boards of directors or agents, be
liable in their individual capacities to any person whomsoever for the payment
of benefits under this Plan.
10.5 DISCRIMINATION. The Plan Administrator shall administer this
Plan in a uniform and consistent manner with respect to all Participants and
Beneficiaries and shall not permit discrimination in favor of its officers,
stockholders or "highly compensated employees" (as defined in Code Section
414(q)).
10.6 CLAIMS. Any payment to a Participant or Beneficiary or to his
legal representative, child, spouse or heirs-at-law, made in accordance with the
provisions of this Plan, shall to the extent thereof be in full satisfaction of
all claims hereunder against the Plan Sponsor, the Plan Administrator, the
Trustee and the Employer, any of whom may require such person, his legal
representative, child, spouse or heirs-at-law, as a condition precedent to such
payment, to execute a receipt and release therefor in such form as shall be
satisfactory to the Plan Sponsor, the Plan Administrator, the Trustee or any
Employer, as the case may be.
10.7 NO REVERSION. No part of the Trust Fund shall ever be used
for or be diverted to purposes other than for the exclusive benefit of
Participants and Beneficiaries except:
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(a) As expressly provided otherwise in this Plan;
(b) A contribution which is made by the Employer by a mistake of
fact upon direction of the Employer shall be refunded by the
Trustee to the Employer within one year after the payment of
such contribution;
(c) A contribution (other than a contribution actually credited to
an After-Tax Employee Account) for which the Internal Revenue
Service denies an income tax deduction to the Plan Sponsor or
an Employer shall be refunded by the Trustee to the Employer
within one year after the denial of such deduction upon the
Employer's direction, all such contributions being made
expressly on the condition that such contributions are
deductible in full for federal income tax purposes; and
(d) A contribution which would otherwise be an excess contribution
or excess aggregate contribution (as defined in Code Sections
4979(a) and (d)) may, at the direction of the Employer, be
returned to the Employer by the Trustee during the first two
and one-half (2-1/2) months of the Plan Year following the
Plan Year with respect to which the contribution was made.
10.8 AGENT FOR SERVICE OF PROCESS. The agent for service of process
for this Plan shall be the person currently listed in the Summary Plan
Description for this Plan as the agent for service of process.
10.9 ROLLOVER CONTRIBUTIONS. An Eligible Employee may transfer to
this Plan:
(a) A total distribution of the balance to the credit of a
Participant, or the cash proceeds of any such total
distribution in property or securities, to which Code Section
402(a)(5) applies to the extent that such section applies to
such distribution, or
(b) Any distribution from an individual retirement account to
which Code Section 408(d)(3)(A)(ii) applies to the extent such
section applies to such distribution; provided, that
(c) The Plan Administrator reasonably concludes (within the
meaning of any ruling or regulations issued by the Secretary
of the Treasury) that:
(1) The distributing plan and trust are, at the time of
the distribution, qualified pursuant to Code Sections
401(a) and 501(a) (and, if requested by the Plan
Administrator, appends to such certification a copy
of the most recent determination letter issued by the
Internal Revenue Service with respect to such plan
and trust);
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(2) The distributing plan is neither a defined benefit
plan nor a defined contribution plan subject to the
funding standards of Code Section 412; and
(3) With respect to the Participant, the distributing
plan is not a direct or indirect transferee (in a
transfer after 1984) of a plan described in
paragraphs (1) and (2) above or this paragraph (3),
provided that this paragraph (3) shall apply only if
the distributing plan has separately accounted for
the transferred assets and any income allocable to
such assets.
(d) The Plan Administrator acting in this absolute discretion
consents to such transfer;
(e) The Eligible Employee satisfies such uniform and
nondiscriminatory requirements which the Plan Administrator
establishes from time to time as a condition to such a
transfer; and
(f) Such transfer is made in cash to the Trustee as of a Valuation
Date and in a manner which is acceptable to the Plan
Administrator and to the Trustee.
10.10 SHAREHOLDER RIGHTS FOR BOWATER INCORPORATED COMMON STOCK.
(a) Voting Shares of Bowater Incorporated Common Stock. All
shares of Bowater Incorporated common stock held in the Trust
Fund shall be voted by the Trustee only in accordance with
instructions from the Participants or Beneficiaries, as set
forth in this Section 10.10. For purposes of the actions taken
under this Section 10.10, Participants and Beneficiaries shall
be considered to be named fiduciaries within the meaning of
Section 402(a) (2) of ERISA. Each Participant or Beneficiary
shall be entitled to give voting instructions with respect to
the shares of Bowater Incorporated common stock allocated to
his Accounts. In the event that a Participant or Beneficiary
fails to direct the Trustee as to the exercise of such voting
rights, the Trustee shall not exercise such voting rights.
With respect to each occasion for the exercise of such voting
rights, the Trustee, through the Plan Administrator, will
notify each Participant or Beneficiary within a reasonable
time (not less than 30 days) before such rights are to be
exercised. Such notification will include all the information
distributed to the Trustee regarding the exercise of such
rights.
(b) Directions to the Trustee. Not less than five business days
prior to the date on which such voting rights are to be
exercised, each Participant or Beneficiary 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. To the
extent possible, the Trustee shall vote the combined
fractional shares of Bowater Incorporated common stock
allocated to the Account(s) of Participants and Beneficiaries
to reflect the directions of the Participants to whom such
fractional shares of Bowater Incorporated common stock are
allocated.
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(c) No Recommendations. Neither the Trustee nor the Plan
Administrator nor the members of any committees may make any
recommendation to the Participants or Beneficiaries regarding
the manner of exercising any voting rights, including whether
or not such rights should be exercised.
(d) 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 Bowater Incorporated common
stock allocated to his Accounts.
(e) Public Offers. Notwithstanding any provision of the Plan to
the contrary, in the event of a "tender offer" within the
meaning of Section 14(d) of the Securities Exchange Act of
1934, for shares of Bowater Incorporated common stock by any
person (other than the Plan Sponsor or any Affiliate), the
Trustee, through the Plan Administrator, shall promptly
provide a copy of the offer, and any other material or
information concerning such offer, to each Participant or
Beneficiary (as appropriate). For purposes of the actions
taken under this Section 10.10(e), Participants and
Beneficiaries shall be considered to be "named fiduciaries"
within the meaning of Section 402(a)(2) of ERISA. Each
Participant or Beneficiary (as appropriate) shall be entitled
to give the Trustee instructions with respect to the tender of
all, but not less than all, shares of Bowater Incorporated
common stock allocated to his Account. Upon receipt of
instructions from a Participant or Beneficiary (as
appropriate) to so tender, the Trustee shall tender all such
shares of Bowater Incorporated common stock to the tender
offeror. In the event that a Participant or Beneficiary fails
to direct the Trustee as to whether to tender or to not tender
shares of Bowater Incorporated common stock, the Trustee shall
tender all or such part of such shares of Bowater Incorporated
common stock as the Trustee, in its exercise of discretion,
shall deem appropriate.
The solicitation and implementation of instructions from
Participants (and Beneficiaries) pursuant to this Section
10.10(e) shall, to the best of the abilities of the Trustee,
be carried out in such a manner as will, for a reasonable
time, preserve the "confidentiality" of the instructions given
by any particular Participant or Beneficiary within the
meaning and intent of that term as used in Section 203(a)(2)
of the General Corporation Law of the State of Delaware. In
the event that instructions cannot otherwise be returned to
the Trustee in a timely fashion, the Plan Sponsor shall use
its best efforts to collect and tabulate such instructions in
a manner that will assure a confidential and timely tender by
the Trustee.
The proceeds received by the Trustee as a result of having
tendered shares of Bowater Incorporated common stock shall be
applied under the Plan as directed by the Plan Administrator,
in accordance with the following precepts. The Accounts of
Participants and Beneficiaries who directed the Trustee not to
tender the shares of
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Bowater Incorporated common stock allocated to their
respective Accounts shall continue to be invested in shares of
Bowater Incorporated common stock, subject to any other
investment direction the Participant (or Beneficiary) may be
entitled to give.
The Accounts of Participants and Beneficiaries who directed
the Trustee to tender the shares of Bowater Incorporated
common stock allocated to their respective Accounts shall
receive the proceeds of such tender allocable to the tendered
shares of Bowater Incorporated common stock from such Account,
which shall be invested at the direction of the Participant,
as hereinafter provided, subject to any other investment
direction the Participant (or Beneficiary) may be entitled to
give. There shall be allocated to the Accounts of Participants
and Beneficiaries who gave no directions to the Trustee with
respect to the tender of shares of Bowater Incorporated common
stock, proceeds of the tender allocable to the shares of
Bowater Incorporated common stock (if any) tendered from their
respective Accounts, and the shares of Bowater Incorporated
common stock and such proceeds shall be invested in the same
manner provided for in the preceding two sentences. Any cash
so received may be invested in short-term investments, pending
the Trustee's receipt of directions from the Participant.
The Trustee shall give advance notice of at least one full
business day to the Plan Sponsor before taking any action in
response to such an offer other than the actions described
above. The Trustee shall be entitled to reasonable
compensation and reimbursement for its out-of-pocket expenses
for any extraordinary services attributable to the duties and
responsibilities described in this Section.
10.11 QUALIFIED DOMESTIC RELATIONS ORDER. The prohibitions of
Section 10.2 shall not apply to distributions under a "qualified domestic
relations order," as defined in Section 414(p) of the Code. The Plan
Administrator shall establish written procedures as it deems appropriate to
determine the qualified status of domestic relations orders and shall administer
such qualified domestic relations orders as set forth in such orders, subject to
the terms of this Plan and Section 414(p) of the Code. Distributions shall be
permitted to an alternate payee under a qualified domestic relations order
before the Participant attains "earliest retirement age" under the Plan, as set
forth in Section 414(p) of the Code.
10.12 PLAN TO PLAN TRANSFERS. The Plan Administrator, in his or her
discretion, may direct transfers to a participant's Before-Tax Unmatched
Account, After-Tax Employee Account, GNP Basic Contribution Account, GNP
Matching Account or Rollover Account, and may authorize the establishment of any
other Account as may be required to effect the transfer from the Trustee of his
or her account in another Bowater Incorporated defined contribution plan
qualified under Code Section 401(a), provided that such transfer would not cause
this Plan to be a direct or indirect transferee within the meaning of Section
401 (a)(11)(B)(iii)(III) of a plan described in Section 401 (a)(11)(B)(i) or
(ii) of the Code.
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Any such transfer shall be made as of a Valuation Date which is
acceptable to the Plan Administrator and to the Trustee. The initial investment
of any such transfer amount shall be in accordance with procedures to be
established by the Plan Administrator.
ARTICLE XI
TRANSFER OF ASSETS FROM AND ASSUMPTION OF
CERTAIN LIABILITIES OF
THE GEORGIA-PACIFIC CORPORATION
SAVINGS AND CAPITAL GROWTH PLAN
11.1 ASSET TRANSFER. All assets formerly held by the trustee of the
Georgia-Pacific Corporation Savings and Capital Growth Plan (the "G-P Plan") in
accounts of participants in the G-P Plan who became Employees on January 1, 1992
are a part of the Trust Fund and held in the Accounts of the respective
Employees on whose behalf such assets were held under the G-P Plan. Such amounts
are assets of this Plan for all purposes hereunder. This Plan has assumed the
liabilities of the G-P Plan to the Employees whose G-P Plan accounts were
transferred to the Trustee with respect to the transferred accounts.
11.2 VESTING. Each former employee of Georgia-Pacific Corporation
on whose behalf one or more accounts under the G-P Plan have been transferred to
this Plan shall have a 100% vested and nonforfeitable interest in each such
transferred Account. For purposes of determining Years of Service for vesting
purposes under the Plan, individuals who became Employees on January 1, 1992 and
who were Georgia-Pacific Corporation employees on the immediately preceding day
shall be credited with the period(s) of employment credited toward years of
service under the G-P Plan as in effect on such date.
11.3 ELIGIBILITY TO PARTICIPATE. For purposes of determining years
of Service with respect to eligibility to participate in the Plan and
eligibility for contributions under Section 3.1(a), individuals who became
Employees on January 1, 1992 and who were Georgia-Pacific Corporation employees
on the immediately preceding day shall be credited with period(s) of employment
which would have been credited toward eligibility to participate in the G-P Plan
(as in effect on such date), had the individual's employment with the Employer
been continuous employment with Georgia- Pacific Corporation.
ARTICLE XII
TOP HEAVY PROVISIONS
12.1 OVERRIDING PROVISION. If the Plan is or becomes top-heavy in
any Plan Year, the provisions of this Article shall supersede any conflicting
provisions in the Plan.
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12.2 DEFINITIONS.
------------
(a) Determination Date. For any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan Year. For
the first Plan Year of the Plan, the last day of that Year.
(b) Earnings. For purposes of this Article XII, the compensation
that is included on an Employee's Form W-2 for the calendar
year that ends with or within the Plan Year plus the amount of
any Before-Tax Contributions made on behalf of the Employee
for such calendar year.
(c) Key Employee. Any Employee or former employee (and the
Beneficiaries) of such employee) who, at any time during the
termination period, was a Key Employee in accordance with
Section 416(i)(1) of the Code and regulations thereunder.
(d) Permissive Aggregation Group. The Required Aggregation Group
of plans plus any other plan or plans of the Employer which,
when considered as a group with the Required Aggregation
Group, would continue to satisfy the requirements of Sections
401(a)(4) and 410 of the Code.
(e) Present Value. The value based on the 1983 Group Annuity
Mortality Table, separately for males and females, and an
interest rate of five percent per annum.
(f) Required Aggregation Group. (1) Each qualified plan of the
Employer in which at least one Key Employee participates, and
(2) any other qualified plan of the Employer which enables a
plan described in (1) to meet the requirements of Sections
401(a)(4) and 410 of the Code.
(g) Top-Heavy Plan. This Plan is top-heavy for any Plan Year if
any of the following conditions exist:
(1) If the Top-Heavy Ratio for this Plan exceeds 60
percent and the Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group of
plans;
(2) If this Plan is a part of a Required Aggregation
Group of plans (but not part of a Permissive
Aggregation Group) and the Top-Heavy Ratio for the
group of plans exceeds sixty percent (60%); or
(3) If this Plan is a part of a Required Aggregation
Group of Permissive Aggregation Group and the
Top-Heavy Ratio for the group of plans exceeds 60
percent.
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(h) Top-Heavy Ratio.
---------------
(1) If the Employer maintains one or more defined benefit
plans and has not maintained any defined contribution
plans (including any simplified employee pension
plan), which, during the five-year period ending on
the Determination Date, has or has had account
balances, the Top-Heavy Ratio for this group alone or
for the Required or Permissive Aggregation Group, as
applicable, is a fraction. The numerator is the sum
of the Present Values of accrued benefits of all Key
Employees as of the Determination Date, and the
denominator of which is the sum of the present values
of all accrued benefits, determined in accordance
with Code Section 416 and the regulations thereunder.
Both the numerator and the denominator include any
part of any accrued benefits distributed in the
five-year period ending on the Determination Date.
(2) If the Employer maintains one or more defined benefit
plans and maintains or has maintained one or more
defined contribution plans (including any simplified
employee pension plan), which, during the five-year
period ending on the Determination Date, has or has
had any account balances, the Top- Heavy Ratio for
any Required or Permissive Aggregation Group, as
applicable, is a fraction. The numerator is the sum
of the Present Values of accrued benefits under the
aggregate defined benefit plan or plans for all Key
Employees, determined in accordance with (a) above,
plus the sum of account balances under the aggregate
defined contribution plan or plans of all Key
Employees as of the Determination Date. The
denominator is the sum of the Present Values of all
accrued benefits under the aggregate defined benefit
plan or plans for all Participants and the sum of the
account balances under the aggregate defined
contribution plan or plans for all Participants, all
determined in accordance with Section 416 of the Code
and the regulations thereunder. Both the numerator
and the denominator include any part of any accrued
benefits or account balances distributed in the
five-year period ending on the Determination Date.
(3) For purposes of (a) and (b) above, the value of
account balances and the Present Value of accrued
benefits will be determined as of the most recent
Comprehensive Valuation Date that falls within or
ends with the 12-month period ending on the
Determination Date, except as provided in Code
Section 416 and the regulations thereunder for the
first and second plan years for a defined benefit
plan. The account balances and accrued benefits will
be disregarded for a Participant: (1) who is not a
Key Employee but who was a Key Employee in a prior
year, or (2) who has not received any compensation
from any Employer maintaining the Plan at any time
during the five-year period ending on the
Determination Date. The calculation of the Top-Heavy
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Ratio, and the extent to which distributions,
rollovers, and transfers are taken into account will
be made in accordance with Code Section 416 and the
regulations thereunder. Deductible Employee
Contributions will not be taken into account for
computing the Top-Heavy Ratio. When aggregating
plans, the values of account balances and accrued
benefits will be calculated with reference to the
Determination Dates that fall within the same
calendar year.
(i) Valuation Date. The first day of the Plan Year.
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12.3 MINIMUM CONTRIBUTION. For any Plan Year in which this Plan is
top-heavy., provided the top-heavy ratio is less than 90%, each Employee who is
eligible to participate under Sections 2.1 or 2.2, and who is not eligible for
participation under any defined benefit plan maintained by his Employer shall
have a contribution of five percent of Earnings credited to his Accounts. Such
contribution will be made with respect to any such Employee irrespective of
whether such Employee has performed or will perform 1,000 Hours of Service (or
the equivalent) for such Plan Year or has made any contributions to this Plan
with respect to such Plan Year. This contribution shall include amounts
contributed under Sections 3.1 and 3.3 and Article IV. For any Plan Year in
which the top-heavy ratio for this Plan is 90% or more, such minimum
contribution shall be three percent of Earnings, and (for Plan Years beginning
before January 1, 2000) the 125% factor in Section 3.7 shall be reduced to 100%.
ARTICLE XIII
CHANGE IN CONTROL PROVISIONS
13.1 GENERAL. In the event of a Change in Control, as hereinafter
defined, the provisions of this Article XIII shall supersede any conflicting
provisions in the Plan.
13.2 SPECIAL VESTING. Anything in this Plan to the contrary
notwithstanding, upon and following a Change in Control, the GNP Matching
Account of Participants in the Plan who are Employees of the Employer as of the
date of Change in Control shall be nonforfeitable.
13.3 DEFINITIONS. The following definitions apply for purposes of
this Article XIII:
(a) "Acquiring Person" means the Beneficial Owner, directly or
indirectly, of Common Stock representing 20% or more of the
common voting power of the Company's then outstanding
securities, not including (except as provided in clause (i) of
the next sentence) securities of such Beneficial Owner
acquired pursuant to an agreement allowing the acquisition of
up to and including 50% of such voting power approved by
two-thirds of the members of the Board who are Board members
before the Person becomes a Beneficial Owner, directly or
indirectly, of Common Stock representing 5% or more of the
combined voting power of the Company's then outstanding
securities. Notwithstanding the foregoing, (i) securities
acquired pursuant to an agreement described in the preceding
sentence will be included in
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determining whether a Beneficial Owner acquires 5% or more of
such voting power other than pursuant to such an agreement so
approved and (ii) a Person shall not be an Acquiring Person if
such Person is eligible to and files a Schedule 13G with
respect to such Person's status as a Beneficial Owner of all
Common Stock of the Company of which the Person is a
Beneficial Owner.
(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 of 1934 (the "Act").
(c) "Change in Control" shall be deemed to have occurred upon:
(i) The date that any Person is or becomes an Acquiring
Person;
(ii) The date that the Plan Sponsor's shareholders approve
a merger, consolidation or reorganization of the Plan
Sponsor with another corporation or other Person,
unless, immediately following such merger,
consolidation or reorganization, (A) at least 50% of
the combined voting power of the outstanding
securities of the resulting entity would be held in
the aggregate by the shareholders of the Plan Sponsor
as of the record date for such approval (provided
that securities held by any individual or entity that
is an Acquiring Person, or who would be an Acquiring
Person if 5% were substituted for 20% in the
definition of such term, shall not be counted as
securities held by the shareholders of the Plan
Sponsor, but shall be counted as outstanding
securities for purposes of this determination), or
(B) at least 50% of the board of directors or similar
body of the resulting entity are Continuing
Directors;
(iii) The date the Plan Sponsor sells or otherwise
transfers all or substantially all of its assets to
another corporation or other Person, unless,
immediately after such sale or transfer, (A) at least
50% of the combined voting power of the
then-outstanding securities of the resulting entity
immediately following such transaction is held in the
aggregate by the Plan Sponsor's shareholders as
determined immediately prior to such transaction
(provided that securities held by any individual or
entity that is an Acquiring Person, or who would be
an Acquiring Person if 5% were substituted for 20%
in the definition of such term, shall not be counted
as securities held by the shareholders of the Plan
Sponsor, but shall be counted as outstanding
securities for purposes of this determination), or
(B) at least 50% of the board of directors or similar
body of the resulting entity are Continuing
Directors; or
(iv) The date on which less than two-thirds (2/3) of the
total membership of the Board consists of Continuing
Directors.
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<PAGE> 67
(d) "Continuing Directors" means any member of the Board who (i)
was a member of the Board prior to the date of the event that
would constitute a Change in Control, and any successor of a
Continuing Director while such successor is a member of the
Board, (ii) is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person, and (iii) is recommended or
elected to succeed the Continuing Director by a majority of
the Continuing Directors.
(e) "Person" means any individual, firm, corporation, partnership,
trust or other entity.
(f) A "Beneficial Owner" of Common Stock means (i) a Person who
beneficially owns such Common Stock, directly or indirectly,
or (ii) a Person who has the right to acquire such Common
Stock (whether such right is exercisable immediately or only
with the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing) or
upon the exercise of conversion rights, exchange rights,
warrants, options or otherwise.
13.4 NO AMENDMENT. This Article XIII 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 13.4 shall be construed to prohibit, prior to a Change in Control, any
amendment to the Plan, including this Article XIII, or any termination of the
Plan pursuant to its terms.
* * *
IN WITNESS WHEREOF, Great Northern Paper, Inc. has adopted and executed
this Plan as of this ___ day of ____________, 1998.
GREAT NORTHERN PAPER, INC.
By
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date Signed:
---------------------------
62
<PAGE> 68
EXHIBIT 4.14
AMENDMENT NO. 1
TO THE
GREAT NORTHERN PAPER, INC.
SAVINGS AND CAPITAL GROWTH PLAN FOR SALARIED EMPLOYEES
Effective as of the date specified herein, the Great Northern Paper, Inc.
Savings and Capital Growth Plan for Salaried Employees, as amended and restated
effective January 1, 1997 (the "Plan"), is hereby further amended as follows:
1. The first sentence of Section 1.18 of the Plan is amended to read as
follows:
"Elective Contributions are Employer Contributions made to a plan that were
subject to a cash or deferred election under a cash or deferred
arrangement."
2. Paragraph (a) of Section 1.19 of the Plan is amended to read as
follows:
"(a) Any Employer contribution under a qualified cash or deferred
arrangement (as defined in Code Section 401(k)) to the extent not
includible in a Participant's gross income for the taxable year
under Code Section 402(e)(3), and"
3. Paragraph (b) of Section 1.19 of the Plan is amended to read as
follows:
"(b) Any Employer contribution to the extent not includible in gross
income for the taxable year under Code Section 402(h)(1)(B), and"
4. Paragraph (d) of Section 1.19 of the Plan is amended to read as
follows:
"(d) Any Employee Contribution designated as deductible under a trust
described in Code Section 501(c)(18) to the extent deductible from
the individual's income for the taxable year on account of Code
Section 501(c)(18)."
5. The first sentence of Section 1.41 of the Plan is amended to read as
follows:
"Military Leave of Absence means an absence from regular employment to
perform any uniformed service, duty or training within the meaning of
USERRA, which is effective as of December 12, 1994."
* * *
<PAGE> 69
IN WITNESS WHEREOF, Great Northern Paper, Inc. has caused this Amendment
No. 1 to the Plan to be executed by its duly designated officers and its
corporate seal to be affixed hereto on the 28th day of May, 1999.
GREAT NORTHERN PAPER, INC.
By: /s/ David G. Maffucci
---------------------------------
Its: Director, Vice President & Treasurer
--------------------------------------
ATTEST:
By: /s/ Hay L. Grain
-----------------------------
Its: Assistant Secretary
-------------------------
-2-
<PAGE> 70
SECOND AMENDMENT TO THE
GREAT NORTHERN PAPER, INC.
SAVINGS AND CAPITAL GROWTH PLAN FOR SALARIED EMPLOYEES
(AMENDED AND RESTATED, EFFECTIVE JANUARY 1, 1997)
WHEREAS, Bowater Incorporated (the "Company") sponsors the Great
Northern Paper, Inc. Savings and Capital Growth Plan for Salaried Employees
(amended and restated, effective January 1, 1997) (the "Plan") for the benefit
of eligible employees of Great Northern Paper, Inc. ("GNP"), a wholly-owned
subsidiary of the Company, and has reserved the right to amend the Plan;
WHEREAS, pursuant to an agreement dated as of May 18, 1999, the Company
has agreed to sell its entire interest in GNP to Inexcon Maine, Inc.;
WHEREAS, the Company desires to amend the Plan to provide that as of
the Closing Date, (1) (GNP will replace the Company as Plan sponsor, (2) GNP
shall have full responsibility with respect to the administration of the Plan,
and (3) investments in Company stock shall not be permitted.
NOW, THEREFORE, the Company hereby amends the Plan, effective as of the
date the sale of all the stock of GNP by the Company is consummated, in the
following respects,
1. Section 1.2 is amended to read as follows:
"(b) For Plan Years before January 1, 2000, the term 'Actual
Contribution Percentage' means as to all Highly Compensated Eligible
Employees and all Lower Paid Eligible Employees for the applicable Plan
Year, the average of the ratios ('Actual Contribution Ratios'),
calculated separately for each Eligible Employee in each such group, of
(1) the sum of the GNP Matching Contributions, After-Tax Contributions
and Employer contributions to permit investments in Bowater
Incorporated common stock under Section 4.1(a) made on his behalf to
(2) his 'compensation' (as defined in Section 414(s) of the Code, as
determined by the Plan Administrator) for such Plan Year.
For Plan Years beginning on or after January 1, 2000, 'Actual
Contribution Percentage' means as to all Highly Compensated Eligible
Employees and all Lower Paid Eligible Employees for the applicable Plan
Year, the average of the ratios ('Actual Contribution Ratios'),
calculated separately for each Eligible Employee in each such group, of
(1) the sum of the GNP Matching Contributions and After-Tax
Contributions to (2) his 'compensation' (as defined in Section 414(s)
of the Code, as determined by the Plan Administrator) for such Plan
Year."
<PAGE> 71
2. New Section 1.15 is added to read as follows, and subsequent sections
of Article I are renumbered accordingly:
"1.15 CLOSING DATE. Closing Date means the date on which
the sale of all of the stock of Great Northern Paper, Inc. by Bowater
Incorporated is consummated."
3. Section 1.21 (as renumbered) is amended to read as follows:
"1.21 ELIGIBLE EMPLOYEE. Eligible Employee means for each
Plan Year each Employee of an Employer who is employed on a regular
salaried basis, other than an Employee who is treated as such solely by
reason of the "leased employee" rule set forth in Code Section 414(n).
4. Section 1.25(as renumbered) is amended to read as follows:
"1.25 EMPLOYER. Employer means GNP and each Affiliate which
the Plan Sponsor designates in writing as such from time to time and
which adopts the Plan."
5. Section 1.48 (as renumbered) is amended to read as follows:
"1.48 PLAN SPONSOR. Plan Sponsor means Great Northern
Paper, Inc., a Delaware corporation, and any successor corporation."
6. Section 1.54 (as renumbered) is amended to read as follows:
"1.54 TRUST AGREEMENT. Trust Agreement means the Master
Trust Agreement between Bowater Incorporated and Fidelity Management
Trust Company dated as of July 1, 1994, and any successor thereto."
7. Section 1.56 is amended to read as follows:
"1.56 TRUSTEE. Trustee means Fidelity Management Trust
Company, as Trustee under the Master Trust Agreement between Bowater
Incorporated and Fidelity Management Trust Company dated as of July 1,
1994, and any successor thereto."
8. Section 3.6(b)(i) is amended to read as follows:
"(1) For Plan Years before January 1, 2000, the term
'annual additions' shall mean the sum of:
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<PAGE> 72
(A) Employer Contributions, Employer
Contributions to permit investments in
Bowater Incorporated common stock under
Section 4.1(a) and forfeitures allocated to
the Participant's Accounts under Section
3.1, 3.3 and 5.1; plus
(B) Before-Tax Contributions and After-Tax
Contributions allocated to the Participant's
Accounts under Sections 3.2 and 3.4.
For Plan Years beginning on or after January 1, 2000,
the term 'annual additions' shall mean the sum of:
(A) Employer contributions and forfeitures
allocated to the Participant's Accounts
under Section 3.1; 3.3 and 5.1; plus
(B) Before-Tax Contributions and After-Tax
Contributions allocated to the Participant's
Accounts under Sections 3.2 and 3.4."
9. Section 4.1(a) is amended to read as follows:
"(a) FUND A. The Bowater Incorporated Stock Fund, which invests
primarily in shares of Bowater Incorporated common stock.
However, a small percentage of the Fund is invested in money
market instruments to facilitate daily cash transactions. Cash
dividends received on shares of Bowater Incorporated stock
held by this Fund will be automatically reinvested in the Fund
and held with the assets described in the preceding sentence.
Accounts in this Fund shall segregate, separately account for
and respectively consist of shares of Bowater Incorporated
stock attributable to Employer Contributions and Participant
Contributions. All Participant Contributions initially
invested directly in this Fund pursuant to Section 4.2(b)
shall be treated as if invested at 95% of market value, with
the Employer making the necessary contributions to effect
allocations at full fair market value. Notwithstanding the
foregoing, from and after the Closing Date, no new Employer
Contributions or Participant Contributions shall be permitted
to be invested in Bowater Incorporated common stock."
10. The third and fourth sentences of Section 4.2(b) are amended to read as
follows:
"A Participant may, by giving prior Appropriate Notice, 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. Notwithstanding any provision of the Plan to the contrary,
from and after the Closing Date, no transfer may be made into the
Bowater Incorporated Stock Fund."
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<PAGE> 73
11. Section 5.1(b)(2) is amended to read as follows:
"(2) Disabled. A Participant shall be treated as 'disabled' under
this Plan if his employment as an Employee terminates as a
result of an illness, injury or other condition which makes
that Participant eligible to receive benefits under the Great
Northern Paper, Inc. Long-Term Disability Plan or which would,
in the Plan Administrator's judgment, make such Participant
eligible for such benefits if he participated in such plan."
12. Section 5.4(a)(1) is amended to read as follows:
"(1) with respect to all Participants: by a lump sum payment in
cash or, with respect to the Bowater Incorporated Stock Fund,
upon the request of the Participant, in kind, plus the cash
equivalent of the fair market value of any fractional share
of Bowater Incorporated common stock; or"
13. Article VI is amended to read as follows:
"The following parties are Fiduciaries of the Plan:
(a) The Plan Sponsor;
(b) The Trustee; and
(bi) Any committee or individual appointed by the Plan
Sponsor as Plan Administrator or to whom
discretionary administrative authority or
responsibility with respect to the Plan has been
delegated by the Plan Sponsor."
14. Sections 7.1(c) and (d) are amended to read as follows:
(c) The responsibilities of each Fiduciary may be specified by the
Plan Sponsor in writing. If no such delegation is made by the
Plan Sponsor, the Fiduciaries may allocate responsibilities
among themselves in writing and notify the Plan Sponsor that
they have done so, specifying in such notification the
responsibilities of each Fiduciary. If the Fiduciaries provide
a copy of such notification to the Trustee, the Trustee shall
thereafter (until such time as the Plan Sponsor, or the
Fiduciaries deliver to the Trustee a written revocation if
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.
(d) Each Fiduciary shall have only those specific powers, duties,
responsibilities and obligations as are assigned to such
Fiduciary under the
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<PAGE> 74
Plan, delegated to the Fiduciary by action of the Plan
Sponsor, or allocated to the Fiduciary by written allocation
among the Fiduciaries pursuant to paragraph (c), above."
15. The first full paragraph of Section 7.7 is amended to read as follows:
"7.7 INDIVIDUAL INDEMNIFICATION. To the extent permissible under
ERISA, the Plan Sponsor shall indemnify each member of the Board, each
member of any committee established by or at the direction of the Plan
Sponsor or its designee, and the Plan Administrator or any of its
delegates, 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 or omission performed by them or any one of them as a director,
committee member or Plan Administrator, or designee or delegate
thereof, as the case may be, while acting in good faith and exercising
his judgment for the best interest of the Plan."
16. Article XIII is deleted.
* * *
IN WITNESS WHEREOF, the undersigned duly authorized officer of Bowater
Incorporated has executed this First Amendment as of the 9th day of August,
1999.
BOWATER INCORPORATED
By: /s/ Anthony H. Barash
-----------------------------------
Name: Anthony H. Barash
Title: Sr. Vice President, Corporate
-------------------------------
Affairs and General Counsel
-------------------------------
Date signed: 8/9/99
-------------------------
5
