Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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American Brands, Inc.
(Exact Name of Registrant as specified in its charter)
Delaware 13-3295276
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1700 East Putnam Avenue, Old Greenwich, Connecticut 06870-0811
(Address of Principal Executive Offices) (Zip Code)
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MasterBrand Industries, Inc.
Hourly Employee Savings Plan
(Full title of the plan)
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LOUIS F. FERNOUS, JR., Copy to:
Vice President and Secretary EDWARD P. SMITH, ESQ.
AMERICAN BRANDS, INC. CHADBOURNE & PARKE LLP
1700 East Putnam Avenue 30 Rockefeller Plaza
Old Greenwich, Connecticut 06870-0811 New York, New York 10112
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (203) 698-5000
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum Amount
Title of Securities to be Offering Price Aggregate of
to be Registered Registered Per Share ** Offering Registration Fee
Price**
Common Stock,
Par Value $3.125
per share, and
Preferred Share
Purchase Rights*......15,000 shs. $41.375 $620,625 $215
* The Preferred Share Purchase Rights are attached to and trade with the
Common Stock. The value, if any, attributed to such Rights is reflected in
the market price of the Common Stock.
** Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 on the basis of
the average of the high and low prices ($41.625 and $41.125, respectively)
for the Common Stock on the New York Stock Exchange Composite Transactions
on November 3, 1995.
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In addition, pursuant to Rule 416(c) of the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant with the Securities and
Exchange Commission are specifically incorporated herein by reference and made a
part hereof:
(i) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), which incorporates by
reference certain information, including the Company's 1994 consolidated
financial statements contained in its 1994 Annual Report to Stockholders;
(ii) all other reports filed by Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1994;
(iii) the description of Registrant's Common Stock contained in
Registrant's Application for Registration on Form 8-B dated January 27,
1986 by incorporation by reference to pages 17-20 of the Proxy Statement
and Prospectus constituting a part of Registrant's Registration Statement
on Form S-4 (Registration No. 33-635), including amendments to such
description set forth in the Registrant's Current Reports on Form 8-K dated
June 19, 1986 and September 4, 1986, its Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 1990 and its Current Report on Form
8-K dated September 27, 1990 (Registrant's Current Reports on Form 8-K and
Quarterly Report on Form 10-Q referred to in this clause (iii) are
maintained in Securities and Exchange Commission File No. 1-9076); and
(iv) the description of Registrant's Preferred Share Purchase Rights
contained in Registrant's Application for Registration on Form 8-A dated
December 22, 1987, including amendments to such description set forth in
Amendment Nos. 1 and 2 on Form 8 to such Application for Registration on
Form 8-A, dated February 12, 1990 and September 26, 1990, respectively.
All documents subsequently filed by Registrant or the Plan pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Registration Statement.
<PAGE>
Item 4. Description of Securities.
This Item is not applicable as Registrant's Common Stock is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
This Item is not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware provides in part as
follows:
"(a) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
"(b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
"(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (2) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
"(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
"(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
"(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
"(h) For purposes of this section, references to 'the corporation'
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
"(i) For purposes of this section, references to 'other enterprises'
shall include employee benefit plans; references to 'fines' shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to 'serving at the request of the corporation' shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner 'not opposed to the best interests of the
corporation' as referred to in this section.
"(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
"(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses
or indemnification brought under this section or under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise.
The Court of Chancery may summarily determine a corporation's obligation to
advance expenses (including attorneys' fees)."
Article XIII of Registrant's By-laws provides as follows:
"Section 1. (A) Each person (an 'indemnitee') who was or is made or
threatened to be made a party to or was or is involved (as a witness or
otherwise) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a 'proceeding'), by reason of the
fact that he or she or a person of whom he or she is the legal representative
was or is a director, officer or employee of [Registrant] or was or is serving
at the request of [Registrant] as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding was or is alleged action in an official capacity as
a director, officer, employee or agent or in any other capacity while serving as
a director, officer, employee or agent, shall be indemnified and held harmless
by [Registrant] to the fullest extent permitted by the General Corporation Law
of the State of Delaware as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
[Registrant] to provide broader indemnification rights than said law permitted
[Registrant] to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees and retainers therefor, judgments, fines,
excise taxes or penalties under the Employee Retirement Income Security Act of
1974, as amended, and amounts paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in Section 3 of this
Article XIII with respect to proceedings seeking to enforce rights to
indemnification, [Registrant] shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of [Registrant].
(B) The right to indemnification conferred in this Article XIII is and
shall be a contract right. The right to indemnification conferred in this
Article XIII shall include the right to be paid by [Registrant] the expenses
(including attorneys' fees and retainers therefor) reasonably incurred in
connection with any such proceeding in advance of its final disposition, such
advances to be paid by [Registrant] within 20 days after the receipt by
[Registrant] of a statement or statements from the indemnitee requesting such
advance or advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to [Registrant] of an undertaking
by or on behalf of such director or officer, to repay all amounts so advanced if
it shall ultimately be determined that such director or officer is not entitled
to be indemnified under this Article XIII or otherwise.
"Section 2. (A) To obtain indemnification under this Article XIII, an
indemnitee shall submit to [Registrant] a written request, including therein or
therewith such documentation and information as is reasonably available to the
indemnitee and is reasonably necessary to determine whether and to what extent
the indemnitee is entitled to indemnification. Upon written request by an
indemnitee for indemnification pursuant to the first sentence of this Section
2(A), a determination, if required by applicable law, with respect to the
indemnitee's entitlement thereto shall be made as follows: (1) if requested by
the indemnitee, by Independent Counsel (as hereinafter defined), or (2) if no
request is made by the indemnitee for a determination by Independent Counsel,
(a) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (b) if a quorum of the
Board of Directors consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the indemnitee, or (c) by the stockholders of
[Registrant]. In the event the determination of entitlement to indemnification
is to be made by Independent Counsel at the request of the indemnitee, the
Independent Counsel shall be selected by the indemnitee unless the indemnitee
shall request that such selection be made by the Board of Directors, in which
event the Independent Counsel shall be selected by the Board of Directors. If it
is so determined that the indemnitee is entitled to indemnification, payment to
the indemnitee shall be made within 10 days after such determination.
(B) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that the indemnitee is entitled to indemnification
under this Article XIII, and [Registrant] shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.
"Section 3.(A) If a claim under Section 1 of this Article XIII is not paid
in full by [Registrant] within 30 days after a written claim pursuant to Section
2(A) of this Article XIII has been received by [Registrant], or if an advance is
not made within 20 days after a request therefor pursuant to Section 1(B) of
this Article XIII has been received by [Registrant], the indemnitee may at any
time thereafter bring suit (or, at the indemnitee's option, an arbitration
proceeding before a single arbitrator pursuant to the rules of the American
Arbitration Association) against [Registrant] to recover the unpaid amount of
the claim or the advance and, if successful in whole or in part, the indemnitee
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such suit or proceeding (other than a suit or
proceeding brought to enforce a claim for expenses incurred in connection with
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to [Registrant]) that the
indemnitee has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for [Registrant] to
indemnify the indemnitee for the amount claimed or that such indemnification
otherwise is not permitted under the General Corporation Law of the State of
Delaware, but the burden of proving such defense shall be on [Registrant].
(B) Neither the failure of [Registrant] (including its Board of Directors,
Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the indemnitee is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by [Registrant] (including its Board of Directors, Independent
Counsel or stockholders) that the indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the indemnitee has not met the applicable standard of conduct.
(C) If a determination shall have been made pursuant to Section 2(A) of
this Article XIII that the indemnitee is entitled to indemnification,
[Registrant] shall be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to paragraph (A) of this Section 3.
(D) [Registrant] shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to paragraph (A) of this Section 3
that the procedures and presumptions of this Article XIII are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that [Registrant] is bound by all the provisions of this Article
XIII.
"Section 4. The right to indemnification and the payment of expenses
incurred in connection with a proceeding in advance of its final disposition
conferred in this Article XIII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-laws, agreement, vote of stockholders or
Disinterested Directors or otherwise.
"Section 5. [Registrant] may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of [Registrant] or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not [Registrant] would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of the State of Delaware. To the extent that [Registrant]
maintains any policy or policies providing such insurance, each such director,
officer or employee, and each such agent to which rights to indemnification have
been granted as provided in Section 6 of this Article XIII, shall be covered by
such policy or policies in accordance with its or their terms to the maximum
extent of the coverage thereunder for any such director, officer, employee or
agent.
"Section 6. [Registrant] may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to be paid
by [Registrant] the expenses incurred in connection with any proceeding in
advance of its final disposition, to any agent of [Registrant] to the fullest
extent of the provisions of this Article XIII with respect to the
indemnification and advancement of expenses of directors, officers and employees
of [Registrant].
"Section 7. If any provision or provisions of this Article XIII shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (A) the
validity, legality and enforceability of the remaining provisions of this
Article XIII (including without limitation, each portion of any Section of this
Article XIII containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (B) to the fullest extent
possible, the provisions of this Article XIII (including, without limitation,
each portion of any Section of this Article XIII containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
"Section 8. For purposes of this Article XIII:
(A) 'Disinterested Director' means a director of [Registrant] who is not
and was not a party to the matter in respect of which indemnification is sought
by the indemnitee.
(B) 'Independent Counsel' means a law firm, or a member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor in
the past five years has been, retained to represent: (1) [Registrant] or the
indemnitee in any matter material to either such party, or (2) any other party
to the matter giving rise to a claim for indemnification. Notwithstanding the
foregoing, the term 'Independent Counsel' shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either [Registrant] or the
indemnitee in an action to determine the indemnitee's rights under this Article
XIII.
"Section 9. Any notice, request or other communication required or
permitted to be given to [Registrant] under this Article XIII shall be in
writing and either delivered in person or sent by telecopy, telex, telegram or
certified or registered mail, postage prepaid, return receipt requested, to the
Secretary of [Registrant] and shall be effective only upon receipt by the
Secretary."
Registrant has procured insurance protecting it under its obligation to
indemnify officers and directors against certain types of liabilities (including
certain liabilities under the Securities Act of 1933) that may be incurred by
them in the performance of their duties and affording protection to such
officers and directors in certain areas to which the corporate indemnity does
not extend, all within specified limits and subject to specified deductions.
In addition, Registrant and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act of 1933, or to contribute with respect to payments which
Registrant or such persons may be required to make in respect thereof.
Item 7. Exemption from Registration Claimed.
This Item is not applicable.
<PAGE>
Item 8. Exhibits.
4a1 - Certificate of Incorporation, as amended, of Registrant
(incorporated herein by reference to Exhibit 3a2 to the Quarterly
Report on Form 10-Q of Registrant dated May 14, 1990).
4b1 - By-laws of Registrant as amended effective January 31, 1995
(incorporated herein by reference to Exhibit 3(ii)b to the Current
Report on Form 8-K of Registrant dated February 8, 1995).
4c1 - Rights Agreement dated as of December 13, 1987 between Registrant
and First Chicago Trust Company of New York (formerly named Morgan
Shareholder Services Trust Company), as Rights Agent (incorporated
herein by reference to Exhibit 1 to the Application for Registration
of Securities on Form 8-A of Registrant dated December 22, 1987).
4c2 - Amendment No. 1 to Rights Agreement dated as of January 30, 1990
between Registrant and First Chicago Trust Company of New York, as
Rights Agent, amending the Rights Agreement included as Exhibit 4c1
hereto (incorporated herein by reference to Exhibit 2 to Amendment No.
1 on Form 8 to Application for Registration of Securities on Form 8-A
of Registrant dated February 12, 1990).
4c3 - Amendment No. 2 to Rights Agreement dated as of September 25, 1990
between Registrant and First Chicago Trust Company of New York, as
Rights Agent, amending the Rights Agreement constituting Exhibits 4c1
and 4c2 hereto (incorporated herein by reference to Exhibit 3 to
Amendment No. 2 on Form 8 to Application for Registration on Form 8-A
of Registrant dated September 26, 1990).
15a1 - Letter from Coopers & Lybrand L.L.P. as to certain unaudited
financial information.
23a1 - Consent of Coopers & Lybrand L.L.P., independent accountants.
23b1 - Consent of Chadbourne & Parke LLP, counsel to Registrant.
24a1 - Power of Attorney authorizing certain persons to sign this
Registration Statement and amendments hereto on behalf of certain
directors and officers of Registrant.
24b1 - Power of Attorney authorizing certain persons to sign this
Registration Statement and amendments hereto on behalf of
administrators of the Plan.
99a1 - MasterBrand Industries, Inc. Hourly Employee Savings Plan, effective
as of August 1, 1995.
99b1 - American Brands, Inc. Master Defined Contribution Plan Trust
Agreement dated as of January 1, 1992 between Registrant and The
Northern Trust Company.
99b2 - First Amendment to American Brands, Inc. Master Defined Contribution
Plan Trust Agreement constituting Exhibit 99b1 hereto.
99b3 - Second Amendment to American Brands, Inc. Master Defined
Contribution Plan Trust Agreement constituting Exhibits 99b1 and 99b2
hereto.
The Registrant will submit the Plan including any amendments thereto to the
Internal Revenue Service (the "IRS") in a timely manner and will make all
changes required by the IRS in order to maintain the tax qualified status of the
Plan.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
Registrant pursuant to the foregoing provisions, or otherwise, Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Registrant
of expenses incurred or paid by a director, officer or controlling person of
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Old Greenwich, State of Connecticut, on this 8th day
of November, 1995.
AMERICAN BRANDS, INC.
By THOMAS C. HAYS
(Thomas C. Hays, Chairman
of the Board and Chief
Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 8th day of November, 1995.
Signature Title
THOMAS C. HAYS Chairman of the Board and Chief
(Thomas C. Hays) Executive Officer (principal
executive officer) and Director
JOHN T. LUDES* President and Chief Operating
(John T. Ludes) Officer and Director
ROBERT L. PLANCHER* Senior Vice President and Chief
(Robert L. Plancher) Accounting Officer (principal
accounting officer)
DUDLEY L. BAUERLEIN, JR.* Senior Vice President and Chief
(Dudley L. Bauerlein, Jr.) Financial Officer (principal
financial officer)
WILLIAM J. ALLEY* Director
(William J. Alley)
EUGENE R. ANDERSON* Director
(Eugene R. Anderson)
PATRICIA O. EWERS* Director
(Patricia O. Ewers)
<PAGE>
Signature Title
JOHN W. JOHNSTONE, JR.* Director
(John W. Johnstone, Jr.)
WENDELL J. KELLEY* Director
(Wendell J. Kelley)
SIDNEY J. KIRSCHNER* Director
(Sidney Kirschner)
GORDON R. LOHMAN* Director
(Gordon R. Lohman)
CHARLES H. PISTOR, JR.* Director
(Charles H. Pistor, Jr.)
PETER M. WILSON* Director
(Peter M. Wilson)
*By: A. ROBERT COLBY
(A. Robert Colby, Attorney-in-Fact)
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Plan has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Deerfield, State of
Illinois, on this 8th day of November, 1995.
MASTERBRAND INDUSTRIES, INC.
HOURLY EMPLOYEE SAVINGS PLAN
By RANDALL W. LARRIMORE*
(Randall W. Larrimore, Chairman,
MasterBrand Industries, Inc.
Retirement Plan Investment Committee)
*By: A. ROBERT COLBY
(A. Robert Colby, Attorney-in-Fact)
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit Page
15a1 - Letter from Coopers & Lybrand L.L.P. as to certain
unaudited financial information.
23a1 - Consent of Coopers & Lybrand L.L.P., independent
accountants.
23b1 - Consent of Chadbourne & Parke LLP, counsel for
Registrant.
24a1 - Power of Attorney authorizing certain persons to
sign this Registration Statement and amendments
hereto on behalf of certain directors and officers
of Registrant.
24b1 - Power of Attorney authorizing certain persons to
sign this Registration Statement and amendments
hereto on behalf of administrators of the Plan.
99a1 - MasterBrand Industries, Inc. Hourly Employee
Savings Plan, effective as of August 1, 1995.
99b1 - American Brands, Inc. Master Defined
Contribution Plan Trust Agreement dated as of
January 1, 1992 between Registrant and The
Northern Trust Company.
99b2 - First Amendment to American Brands, Inc. Master
Defined Contribution Plan Trust Agreement
constituting Exhibit 99b1 hereto.
99b3 - Second Amendment to American Brands, Inc. Master
Defined Contribution Plan Trust Agreement
constituting Exhibits 99b1 and 99b2 hereto.
EXHIBIT 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: American Brands, Inc.
Registration Statement on Form S-8
Gentlemen:
We are aware that (a) our report dated May 11, 1995 on our review of
interim financial information of American Brands, Inc. and Subsidiaries for the
three-month periods ended March 31, 1995 and 1994 and included in the Company's
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1995 and
(b) our report dated August 10, 1995 on our review of interim financial
information of American Brands, Inc. and Subsidiaries for the three-month and
six-month periods ended June 30, 1995 and included in the Company's Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 1995 are being
incorporated by reference in this Registration Statement on Form S-8 of American
Brands, Inc., and the prospectus related thereto, relating to securities to be
offered under the MasterBrand Industries, Inc. Hourly Employee Savings Plan.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports should
not be considered a part of such Registration Statement or prospectus prepared
or certified by us within the meaning of Sections 7 or 11 of that Act.
Very truly yours,
COOPERS & LYBRAND L.L.P.
1301 Avenue of the Americas
New York, New York 10019
November 8, 1995
EXHIBIT 23a1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8, and the prospectus related thereto, of:
(1) our report dated February 1, 1995 accompanying the consolidated
financial statements of American Brands, Inc. and its subsidiaries as of
December 31, 1994 and 1993, and for the years ended December 31, 1994, 1993 and
1992, incorporated by reference into the Annual Report on Form 10-K of American
Brands, Inc. for the year ended December 31, 1994; and
(2) our report dated February 1, 1995 accompanying the financial statement
schedules of American Brands, Inc. and its subsidiaries included in the Annual
Report on Form 10-K of American Brands, Inc. for the year ended December 31,
1994.
COOPERS & LYBRAND L.L.P.
1301 Avenue of the Americas
New York, New York 10020
November 8, 1995
EXHIBIT 23b1
CONSENT OF COUNSEL
We consent to the incorporation by reference of (a) our opinion as counsel
for American Brands, Inc., a Delaware corporation ("Registrant"), contained in
Item 3, "Legal Proceedings", of the Annual Report on Form 10-K of Registrant for
the fiscal year ended December 31, 1994, and (b) our opinions as counsel for
Registrant contained in Part II, Item 1, "Legal Proceedings", of the Quarterly
Reports on Form 10-Q of Registrant for the quarterly periods ended March 31,
1995 and June 30, 1995, in this Registration Statement on Form S-8 and the
prospectus related thereto.
CHADBOURNE & PARKE LLP
30 Rockefeller Plaza
New York, New York 10112
November 8, 1995
EXHIBIT 24a1
POWER OF ATTORNEY
The undersigned, acting in the capacity or capacities with respect to
American Brands, Inc. stated with their respective names below, hereby
constitute and appoint GILBERT L. KLEMANN, II, EDWARD P. SMITH and A. ROBERT
COLBY, and each of them severally, the attorneys-in-fact of the undersigned with
full power to them and each of them to sign for and in the name of the
undersigned in the capacities indicated below (a) the Registration Statement on
Form S-8 of the Defined Contribution Plan of American Brands, Inc. and
Participating Operating Companies, (b) the Registration Statement on Form S-8 of
the MasterBrand Industries, Inc. Hourly Employee Savings Plan and (c) any and
all amendments and supplements thereto:
Signature Title Date
Thomas C. Hays
---------------------- Chairman of the Board October 24, 1995
Thomas C. Hays and Chief Executive
Officer (principal
executive officer) and
Director
John T. Ludes
---------------------- President and Chief October 31, 1995
John T. Ludes Operating Officer and
Director
Robert L. Plancher
---------------------- Senior Vice President October 27, 1995
Robert L. Plancher and Chief Accounting
Officer (principal
accounting officer)
Dudley L. Bauerlein, Jr.
---------------------- Senior Vice President October 27, 1995
Dudley L. Bauerlein, Jr. and Chief Financial
Officer (principal
financial officer)
William J. Alley
---------------------- Director October 30, 1995
William J. Alley
<PAGE>
Eugene R. Anderson
---------------------- Director October 25, 1995
Eugene R. Anderson
Patricia O. Ewers
---------------------- Director October 25, 1995
Patricia O. Ewers
John W. Johnstone, Jr.
---------------------- Director October 25, 1995
John W. Johnstone, Jr.
Wendell J. Kelley
---------------------- Director October 25, 1995
Wendell J. Kelley
Sidney Kirschner
---------------------- Director October 25, 1995
Sidney Kirschner
Gordon R. Lohman
---------------------- Director October 25, 1995
Gordon R. Lohman
Charles H. Pistor, Jr.
---------------------- Director October 25, 1995
Charles H. Pistor, Jr.
Peter M. Wilson
---------------------- Director October 31, 1995
Peter M. Wilson
EXHIBIT 24b1
POWER OF ATTORNEY
The undersigned, acting in the capacity stated with his name below, hereby
constitutes and appoints GILBERT L. KLEMANN, II, EDWARD P. SMITH and A. ROBERT
COLBY, and each of them severally, the attorneys-in-fact of the undersigned with
full power to them and each of them to sign for and in the name of the
undersigned in the capacity indicated below (a) the Registration Statement on
Form S-8 of the MasterBrand Industries, Inc. Hourly Employee Savings Plan and
(b) any and all amendments and supplements thereto:
Signature Title Date
Randall W. Larrimore
---------------------- Chairman, MasterBrand October 24, 1995
Randall W. Larrimore Industries, Inc.
Retirement Plan
Investment Committee
MASTERBRAND INDUSTRIES, INC.
HOURLY EMPLOYEE SAVINGS PLAN
(Effective as of August 1, 1995)
<PAGE>
TABLE OF CONTENTS
ARTICLE DESCRIPTION PAGE
I DEFINITIONS ................................
II PARTICIPATION ..............................
2.01 Eligibility ...........................
2.02 Enrollment ............................
2.03 Continued Participation ...............
2.04 Change in Status ......................
2.05 Reemployment ..........................
III PARTICIPANT CONTRIBUTIONS ..................
3.01 Elective Contributions ................
3.02 Supplemental Contributions ............
3.03 Changes in Rate of Contributions ......
3.04 Suspension of Contributions ...........
IV EMPLOYER CONTRIBUTIONS .....................
4.01 Matching Contributions ................
4.02 Payment of Contributions ..............
4.03 Annual Additions Limitations ..........
4.04 Contribution Percentages ..............
4.05 Excess Elective Contributions .........
4.06 Excess Matching/Participant
Contributions .......................
4.07 Alternate Percentage Test ..............
V PARTICIPATING INTERESTS ....................
5.01 Separate Accounts .....................
5.02 Adjustment of Participating Accounts....
5.03 Accounting Entries ....................
5.04 Required Information ..................
5.05 Transfer of Assets to or from
Another Plan .......................
VI PAYMENT OF BENEFITS ........................
6.01 Vested Interest .......................
6.02 Manner and Time of Payment ............
6.03 Forfeitures ...........................
6.04 In Service Withdrawals ................
6.05 Delayed Distributions .................
6.06 Information Required of Distributees ..
6.07 Missing Distributees ..................
6.08 Break in Service ......................
6.09 Direct Rollover Provision .............
VII BENEFICIARIES .............................
7.01 Designation of Beneficiaries .........
7.02 Conclusive Presumption ...............
VIII LOANS .....................................
8.01 Availability .........................
8.02 Maximum Amount .......................
8.03 Promissory Note ......................
8.04 Repayment ............................
8.05 Reduction of Account Balance .........
IX INVESTMENT PROVISIONS .....................
9.01 Trust and Trust Agreement .............
9.02 Investment Funds .....................
9.03 Investment Elections .................
9.04 Matching Contributions ...............
9.05 Administration of American
Stock Fund ........................
9.06 Voting of Shares in American
Stock Fund ........................
9.07 Tendering of Shares in American
Stock Fund ........................
9.08 Exercise of Certain Rights Held
in American Stock Fund ............
X ADMINISTRATION ............................
10.01 Fiduciaries .........................
10.02 Claims Procedure ....................
10.03 ERISA Compliance ....................
10.04 Fiduciary Powers ....................
10.05 Administrative Rules ................
10.06 Committee Procedures ................
10.07 Plan Expenses .......................
XI AMENDMENTS AND TERMINATION ................
11.01 Reserved Powers .....................
11.02 Vesting on Plan Termination .........
11.03 Plan Merger .........................
11.04 Successor Employer ..................
XII MISCELLANEOUS .............................
12.01 Interest Non-Transferable ...........
12.02 Action by Participating Employers ...
12.03 Exclusive Benefit ...................
12.04 Gender and Number ...................
12.05 Right to Discharge ..................
12.06 Absence of Guaranty .................
12.07 Headings ............................
XIII TOP-HEAVY RULES ............................
13.01 Top-Heavy Determination ..............
13.02 Minimum Contributions ................
13.03 Special Annual Additions Limitation ..
<PAGE>
MASTERBRAND INDUSRIES, INC.
HOURLY EMPLOYEE SAVINGS PLAN
The MasterBrand Industries, Inc. Hourly Employee Savings Plan is
established as of the Effective Date for eligible Employees of Moen
Incorporated, Waterloo Industries, Inc., Aristokraft, Inc. and Master Lock
Company on and after the Effective Date. This Plan constitutes a restatement and
merger of the Moen Incorporated Employee Savings Plan and the Waterloo
Industries, Inc. Employee Savings Plan for Production and Maintenance Employees
and constitutes a continuation of each such Plan (the "Prior Plan").
ARTICLE I
DEFINITIONS
1.01. The following words and phrases shall have the respective
meanings stated below unless a different meaning is plainly required by the
context:
(a) "Account" means the separate account maintained under Paragraph
5.01 to record a Participant's interest under the Plan.
(b) "American" means American Brands, Inc., a Delaware corporation,
its successors and assigns.
(c) "American Common Stock" means the common stock of American as now
constituted and any other common stock into which it may be re-classified.
(d) "Authorized Leave of Absence" means an absence authorized or
recognized by an Employer under its standard personnel practices.
(e) "Break in Service" means a 60-consecutive month or longer period,
commencing on an Employee's Severance Date, during which he is not credited with
an Hour of Service for the performance of duties. Notwithstanding the foregoing,
any such period of 12 consecutive months ending before January 1, 1985 shall
constitute a Break in Service.
(f) "Code" means the Internal Revenue Code of 1986, as amended. Any
reference to a section of the Code shall include any comparable section or
sections of any future legislation that amends, supplements or supersedes that
section.
(h) "Company" means MasterBrand Industries, Inc., a Delaware
corporation, and any successors to all or substantially all its business.
(i) "Compensation" means the basic salary or wages, overtime, shift
premiums, commissions and bonuses paid by a Participating Employer to a Covered
Employee for personal services, and other amounts includible in the Covered
Employee's gross income on account of such services, including his Elective
Contributions under this Plan or amounts elected to be contributed under a
program established pursuant to Section 125 of the Code but limited to $150,000
annually for Plan Years commencing on or after January 1, 1994 (adjusted for
increases in the cost-of-living pursuant to Section 401(a)(17) of the Code or
regulations of the Internal Revenue Service).
For purposes of Paragraphs 4.03 and 13.01, "Compensation" means a Participant's
earned income, wages, salaries, and fees for professional service and other
amounts received for personal services actually rendered in the course of
employment with an Employer maintaining the Plan (including, but not limited to,
commissions paid to salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips, and bonuses),
but limited to $150,000 annually for Plan Years commencing on or after January
1, 1994 (adjusted for increases in the cost-of-living pursuant to Section
401(a)(17) of the Code or regulations of the Internal Revenue Service) and
excluding the following:
(i) Employer contributions to a plan of deferred compensation
to the extent contributions are not included in the gross income of the
Employee for the taxable year in which contributed, or on behalf of an
Employee to a simplified employee pension plan to the extent such
contributions are deductible by the Employee under Code Section
219(b)(7), or any distributions from a plan of deferred compensation
whether or not includible in the gross income of the Employee when
distributed;
(ii) amounts realized from the exercise of a nonqualified
stock option, or when restricted stock (or property) held by an
Employee either becomes freely transferable or is no longer subject to
a substantial risk of forfeiture;
(iii) amounts realized from the sale, exchange, or other
disposition of stock acquired under a qualified stock option; and
(iv) other amounts which receive special tax benefits, or
contributions made by an employer (whether or not under a salary
reduction agreement) towards the purchase of a Code Section 403(b)
annuity contract (whether or not the contributions are excludible from
the gross income of the Employee).
(j) "Covered Employee" means an Employee who is a member of a group of
Employees to which the Plan has been and continues to be extended by the Company
or a Participating Employer, including (i) Employees of Moen Incorporated
employed in non-supervisory production or distribution positions, (ii) Employees
of Waterloo Industries, Inc. employed in the Pocahontas, Arkansas, Sedalia,
Missouri or Muskogee, Oklahoma Plant of Waterloo Industries, Inc. in production
or maintenance positions, (iii) hourly-paid Employees of Aristokraft, Inc.
employed in the Littlestown, Pennsylvania or Crossville, Tennessee locations or
distribution centers of Aristokraft, Inc. and (iv) hourly-paid Employees of
Master Lock Company employed in the Auburn, Alabama location of Master Lock
Company. The term "Covered Employee" does not include an Employee covered under
a collective bargaining agreement with an Employer which fails to provide for
his inclusion under this Plan, or an Employee employed at an operating unit
acquired or created by a Participating Employer unless, and until, the Plan is
extended to Employees at such unit.
(k) "Effective Date" means January 1, 1994.
(l) "Elective Contributions" means contributions authorized by a
Participant under Paragraph 3.01.
(m) "Eligible Compensation" means Compensation excluding any (i)
severance pay whether paid before or after Severance Date, (ii) amounts deferred
under a plan of an Employer until such amounts are paid, (iii) amounts paid
under any long-term incentive plan, (iv) tax protection payments or foreign
service overbase allowances or premiums, (v) reimbursement for expenses incurred
or to be incurred, (vi) non-cash remuneration such as taxable amounts for life
insurance coverage or use of an automobile or stock options or awards, (vii)
remuneration paid in currency other than U.S. dollars, or (viii) relocation
allowances, sign-on bonuses and other non-recurring payments.
(n) "Employee" means any individual who, on or after the Effective
Date, is employed by an Employer and is receiving remuneration for personal
services rendered to an Employer, but not including an independent contractor.
(o) "Employer" means, individually, (i) the Company, (ii) a
corporation which is a member of a controlled group of corporations with the
Company within the meaning of Section 414(b) of the Code, (iii) a trade or
business (including a sole proprietorship, partnership, trust, estate or
corporation) which is under common control with the Company within the meaning
of Section 414(c) of the Code, or (iv) a member of an affiliated service group
with the Company within the meaning of Section 414(m) of the Code.
(p) "Entry Date" means, with respect to each Covered Employee, the
date as of which the Plan is extended to the group of Employees of which he is a
member and the first day of each subsequent month.
(q) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended. Any reference to a section of ERISA shall include any comparable
section or sections of any future legislation that amends, supplements or
supersedes that section.
(r) "Family Member" means an Employee's or a former Employee's spouse
and lineal ascendants and descendants and the spouses of those lineal ascendants
and descendants. Legal adoptions shall be taken into account in determining
whether an individual is a Family Member.
(s) "Fiduciaries" means the Company, the Board of Directors of the
Company and the board of directors of any other Participating Employer, the
Board of Directors of American Brands, Inc., the Executive Committee of the
Board of Directors of American Brands, Inc., the Retirement Committee, the
Trusts Investment Committee of American Brands, Inc. and the Trustee, but only
with respect to the specific responsibilities of each as described in Article X.
The term "Fiduciaries" also includes any Participant, former Participant or
beneficiary, but only to the extent such Participant, former Participant or
beneficiary is acting as a named fiduciary (within the meaning of Section
403(a)(1) of ERISA) with respect to the exercise of voting rights of shares of
American Common Stock held in the American Stock Fund or the tender, deposit,
sale, exchange or transfer of such shares (and any rights within the meaning of
Paragraph 9.08(a)) as provided in Paragraph 9.06 or 9.07 or with respect to the
sale, exercise or retention of any such rights held in the American Stock Fund
as provided in Paragraph 9.08.
(t) "Highly Compensated Employee" means for a Plan Year an Employee
who during the Plan Year (to the extent required by Code Section 414(q)) or the
preceding Plan Year: (i) was at any time a 5-percent owner of an Employer as
defined in Code Section 416; (ii) received compensation in excess of $75,000;
(iii) received compensation in excess of $50,000 and was in the top 20% of
Employees when ranked on the basis of compensation for that Plan Year; or (iv)
was at any time an officer and received compensation in excess of 50% of the
Code Section 415(b)(1)(A) limitation in effect for that Plan Year. The dollar
thresholds in clauses (ii) and (iii) in the preceding sentence shall be adjusted
annually at the same time and in the same manner as under Section 415(d) of the
Code. A former Highly Compensated Employee shall continue to be treated as a
Highly Compensated Employee if he was a Highly Compensated Employee when he
separated from service at any time after age 55. The determination of whether an
Employee or former Employee is a Highly Compensated Employee shall be made with
reference to the rules in Code Section 414(q) and the applicable regulations.
For purposes of this paragraph, the term "compensation" shall mean
"compensation" as determined in accordance with Code Section 415(c)(3) from the
Employers, but shall include Elective Contributions and any salary reduction
contributions to a cafeteria plan under Code Section 125.
(u) "Hours of Service" means (i) each hour for which an Employee is
directly or indirectly paid or entitled to payment by an Employer for the
performance of duties; (ii) each hour for which a person is directly or
indirectly paid or entitled to payment by an Employer (directly or through a
trust fund or insurance plan to which the Employer contributes) for reasons
other than for the performance of duties, determined in accordance with
Department of Labor Regulations Section 2530.200b-2(b); (iii) an hour, credited
at the rate of a customary full work week for an Employee, during an Authorized
Leave of Absence, provided, however, that the Employee returns to the service of
the Employer (A) from military service within such period as his reemployment
rights are protected by law, or (B) from any other Authorized Leave of Absence
within the period authorized by the Employer; and (iv) each hour not credited
under clause (i), (ii) or (iii) for which back pay, irrespective of mitigation
of damages, has been either awarded or agreed to by an Employer. An Employee for
whom detailed records are not available shall be credited with 45 Hours or
Service for each week in which he is entitled to be credited with one Hour of
Service under the foregoing.
Notwithstanding the foregoing, no more than 501 Hours of Service shall
be credited under clause (ii) or (iii) for any continuous period of absence if
the person is not entitled to credit under clause (iv). Hours of Service
credited under clause (i) shall be credited for the computation periods in which
the duties are performed; Hours of Service credited under clause (ii) for the
computation periods in which no duties are performed occur; Hours of Service
credited under clause (iii) for the computation period(s) within which the leave
of absence occurs; and Hours of Service credited under clause (iv) for the
computation period(s) to which the award or agreement pertains rather than the
computation period(s) in which the award, agreement or payment was made. All
Employees shall be treated alike under similar circumstances.
Hours of Service credited under the Prior Plan shall be credited as
Hours of Service under this Plan.
(v) "Investment Fund" means one of the separate funds in which Plan
assets are invested under Paragraph 9.02.
(w) "Matching Contributions" means contributions made by a
Participating Employer under Paragraph 4.01.
(x) "Participant" means a Covered Employee who has authorized Elective
Contributions or Supplemental Contributions and whose Severance Date has not
occurred.
(y) "Participating Employer" means, individually, the Company and Moen
Incorporated, Waterloo Industries, Inc., Aristokraft, Inc. and Master Lock
Company and any other Employer which adopts this Plan for its eligible
Employees.
(z) "Plan" means the MasterBrand Industries, Inc. Hourly Employee
Savings Plan as set forth herein and as amended from time to time. Furthermore,
where the context so requires, the term "Plan" shall refer to the Prior Plan.
(aa) "Plan Year" means the calendar year.
(bb) "Prior Plan" means, where applicable, (i) the Moen Incorporated
Employee Savings Plan or its predecessor, the Moen Incorporated Savings Plus
Plan and (ii) the Waterloo Industries, Inc. Employee Savings Plan for Production
and Maintenance Employees.
(cc) "Retirement Committee" means the MasterBrand Industries, Inc.
Retirement Committee.
(dd) "Service" means, subject to the provisions of Paragraph 6.08, the
period commencing on the date an Employee first completes an Hour of Service and
ending on his Severance Date.
(ee) "Settlement Date" means the last day of the month coincident with
or next following the first to occur of:
(i) the Participant's Severance Date by reason of his
retirement (A) on or after his 65th birthday, (B) on or after his 55th
birthday and completion of at least 5 years of Service or (C) upon
disability that qualifies him for benefits under a long-term disability
income plan maintained by an Employer or Disability Insurance Benefits
under the federal Social Security Act, or by reason of death;
(ii) April 1 following the Plan Year in which he attains age
70 1/2; and
(iii) the Participant's Severance Date for any reason other
than those specified in (i) next above.
(ff) "Severance Date" means the date on which an Employee's employment
with all Employers is severed. For the purpose of this Plan, a severance from
employment shall occur on the earlier of (i) the date on which an Employee
quits, is discharged, retires or dies, and (ii) the first day next following a
one year period during which an Employee remains absent from employment for any
reason other than those specified in (i) next above; provided, however, that if
the Employee is on an Authorized Leave of Absence at the end of such one year
period, his Severance Date shall occur on the expiration date of such Authorized
Leave of Absence unless he returns to active employment with an Employer on or
before that date. A transfer from employment with one Employer to employment
with another Employer shall not be considered to be a severance from employment.
The first 12 months shall be ignored under (ii) next above to the extent that
the Employee's absence from employment is attributable to maternity or paternity
leave. An absence for maternity or paternity leave means an absence (1) by
reason of the pregnancy of the individual, (2) by reason of the birth of a child
of the individual, (3) by reason of the placement of a child with the individual
in connection with the adoption of such child by such individual, or (4) for
purposes of caring for such child for a period beginning immediately following
such birth or placement.
(gg) "Supplemental Contributions" means contributions made by a
Participant under Paragraph 3.02.
(hh) "Trust" means the trust created and maintained for the purposes
of the Plan.
(ii) "Trust Agreement" means American Brands, Inc. Defined
Contribution Plan Master Trust Agreement.
(jj) "Trustee" means the trustee from time to time acting under the
Trust Agreement, including any successor trustee.
(kk) "Valuation Date" means, with respect to each Investment Fund, the
last day of each month.
(ll) "Year of Eligibility Service" means, subject to the provisions of
Paragraph 2.05, (i) the 12-month period beginning with the date an Employee
first completes an Hour of Service and (ii) any calendar year beginning after
such date, but an Employee shall be credited with a Year of Eligibility Service
only if the Employee had a least 1,000 Hours of Service during such 12-month
period described in clause (i) or calendar year described in clause (ii).
ARTICLE II
PARTICIPATION
2.01. Eligibility.
(a) Any Covered Employee who was a participant in the Prior Plan
immediately prior to the Effective Date shall continue as a Participant in this
amended Plan as of the Effective Date.
(b) A Covered Employee who does not become a Participant in accordance
with the terms of Paragraph 2.01(a) and who first performs an Hour of Service on
or after January 1, 1995 shall be eligible to participate in the Plan on the
first Entry Date coincident with or next following his completion of a Year of
Eligibility Service.
2.02. Enrollment. A Covered Employee may become a Participant as of
the Entry Date he is first eligible, or any subsequent Entry Date, provided on
that date he is a Covered Employee, by signing and filing with his Participating
Employer, within the time limit prescribed by the Company, an application, on a
form provided by the Company, authorizing Elective Contributions on his behalf
under the Plan as set forth in Paragraph 3.01 or Supplemental Contributions on
his behalf under the Plan as set forth in Paragraph 3.02.
2.03. Continued Participation. Each Employee who becomes a Participant
shall thereafter continue as such through his Severance Date. No Elective
Contributions or Supplemental Contributions shall be made, however, for a
Participant with respect to any period of employment during which he is not a
Covered Employee.
2.04. Change in Status. If an Employee is transferred from a position
in which he was not a Covered Employee to a position in which he is a Covered
Employee, he shall be eligible to become a Participant or resume Elective
Contributions and Supplemental Contributions, as the case may be, as of the
first Entry Date coincident with or next following the later to occur of (i)
such transfer or (ii) satisfaction of the requirements of Paragraph 2.01;
provided, however, that an Employee who at the time of transfer was contributing
under another defined contribution plan (as defined in Section 414(i) of the
Code) that provides for matching Employer contributions shall be eligible as
soon as practicable after the later of (i) or (ii) above.
2.05. Reemployment. If a former Participant again becomes an Employee
after his Severance Date, he shall be eligible to participate in the Plan on the
first Entry Date coincident with or next following the date he becomes a Covered
Employee. If a former Employee had not been a Participant, his prior Year(s) of
Eligibility Service shall be restored if the consecutive intervening years of
absence from service are (i) fewer than his Year(s) of Eligibility Service as of
his Severance Date or (ii) fewer than 5. Otherwise, he shall be considered a new
Employee on the date he again becomes an Employee. Notwithstanding the
foregoing, such an Employee's prior Year(s) of Eligibility Service shall be
restored if he had severed from Employment after 1984 (i) by reason of pregnancy
of the Employee or birth of a child of the Employee; (ii) by reason of placement
with the Employee of a child adopted by the Employee; or (iii) for purposes of
caring for such a child for a period beginning immediately after such birth or
placement. Clause (ii) of the second sentence of this Paragraph 2.05 shall not
apply to reemployment if the former Employee had severed from Employment before
1985 and the former Employee's Year(s) of Eligibility Service would not have
been restored had he been reemployed on December 31, 1984. Solely for purposes
of this Paragraph, an Employee will have a year of absence from service if the
Employee has 500 or fewer Hours of Service in (i) the 12-month period beginning
with the date an Employee first completes an Hour of Service or (ii) any
calendar year beginning after such date.
ARTICLE III
PARTICIPATION CONTRIBUTIONS
3.01. Elective Contributions.
(a) Each Participant shall initially authorize his Participating
Employer to reduce his Eligible Compensation by an amount equal to a whole
percentage, up to 17%, of his Eligible Compensation and to make Elective
Contributions under the Plan in equal amounts on his behalf; provided, however,
that the Elective Contributions made on behalf of a Participant in a Plan Year
shall not exceed $7,000, adjusted for each Plan Year to take into account any
cost-of-living increase adjustment provided for such Plan Year under Section
402(g)(5) of the Code, less any elective deferrals (as defined in Section
402(g)(3) of the Code) by the Participant in such Plan Year under any other
plan. The rate of Elective Contributions made on behalf of a Highly Compensated
Employee may, from time to time, be reduced by the Company to comply with the
limitations set forth in Article IV. Elective Contributions shall be paid
monthly to the Trustee by the Participating Employers.
(b) If the Elective Contributions made on behalf of a Participant in
the Participant's taxable year under this Plan exceed the limits of Section
402(g)(1) of the Code (as adjusted under Section 402(g)(5) of the Code), the
excess Elective Contributions (with any income allocable thereto) shall be
distributed to him by April 15 of the following year. If the Elective
Contributions made on behalf of a Participant in the Participant's taxable year,
when added to elective deferrals under other plans or other arrangements
described in Code Sections 401(k), 408(k) or 403(b), exceed the limits of
Section 402(g)(1) of the Code (as adjusted under Section 402(g)(5) of the Code),
a Participant may ask that the excess Elective Contributions (with any income
allocable thereto) be distributed to him by April 15 of the following year. The
Participant's claim must be in writing and submitted to the Retirement Committee
no later than March 1. The claim must specify the amount of the excess Elective
Contributions received by the Plan ("Excess Deferrals") for the preceding
taxable year and must be accompanied by the Participant's written statement that
if the excess is not distributed, the Elective Contributions, when added to
amounts deferred under other plans or arrangements, exceed the limit imposed on
the Participant by Code Section 402(g) for the taxable year in which the
deferral occurred.
(c) The Excess Deferrals shall be adjusted for income or loss during
the Participant's taxable year.
(d) The income or loss allocable to the Excess Deferrals for the
Participant's taxable year is determined by multiplying the income for the
taxable year of the Participant allocable to Elective Contributions made on
behalf of the Participant for the taxable year by a fraction. The numerator of
the fraction is the amount of Excess Deferrals. The denominator of the fraction
is equal to the sum of:
(i) the total balance of the portion of the Participant's Account
attributable to Elective Contributions as of the beginning of the taxable year;
plus
(ii) the Participant's Elective Contributions for the taxable year.
(e) A Participant may receive a corrective distribution of an Excess
Deferral during the same taxable year in which it was made if:
(i) the Participant designates the distribution as an Excess Deferral;
(ii) the corrective distribution is made after the date on which the
Plan received the Excess Deferral; and
(iii) the Plan designates the distribution as a distribution of Excess
Deferrals. The income or loss allocable to the Excess Deferral shall be
determined using the method under Paragraph 3.01(d).
3.02. Supplemental Contributions. A Participant may elect to have
Supplemental Contributions paid to the Trustee in an amount equal to a whole
percentage of the Participant's Eligible Compensation, subject to Paragraphs
3.03 and 3.04. The maximum percentage a Participant may elect is 17% minus the
percentage elected under Paragraph 3.01 to be contributed as Elective
Contributions. The rate of Supplemental Contributions made by a Highly
Compensated Employee may, from time to time, be reduced by the Company to comply
with the limitations of Article IV. Supplemental Contributions shall be paid
monthly to the Trustee by the Participating Employers.
3.03. Changes in Rate of Contributions. A Participant may elect to
change the rate of Elective Contributions or Supplemental Contributions, within
the limits specified hereinabove, as of the first day of any month. The
Participant's election to change the rate of Elective Contributions or
Supplemental Contributions must be made in writing to his Participating
Employer, on a form provided by the Company, within the time limited prescribed
by the Company.
3.04. Suspension of Contributions. A Participant may elect to suspend
Elective Contributions or Supplemental Contributions by means of written notice
to his Participating Employer, on a form provided by the Company, within the
time limit prescribed by the Company. The Participant may, in the same manner as
provided under Paragraph 3.03, elect to resume Elective Contributions or
Supplemental Contributions as of the first day of any month after the suspension
date. Elective Contributions or Supplemental Contributions shall be
automatically suspended for any period during which a Participant is not a
Covered Employee. Elective Contributions or Supplemental Contributions shall be
made from any Eligible Compensation paid after a Participant's Severance Date,
subject to any election under this Paragraph 3.04, except commissions and
bonuses.
ARTICLE IV
EMPLOYER CONTRIBUTIONS
4.01. Matching Contributions. Subject to the conditions and
limitations of this Article IV and Article XI, each of Participating Employers,
Moen Incorporated and Waterloo Industries, Inc., shall contribute under the Plan
each Plan Year for each Participant in its employ during such year an amount
based on the Elective Contributions and Supplemental Contributions, if any, made
on his behalf during such year by such Participating Employer. The Matching
Contribution for each Participant employed by Moen Incorporated and each
Participant employed by Waterloo Industries, Inc. in the Muskogee, Oklahoma
Plant of Waterloo Industries, Inc. shall be equal to 50% of the Participant's
Elective Contributions and Supplemental Contributions to the extent the rate of
such Elective Contributions and Supplemental Contributions in effect from time
to time does not exceed 6% of his Eligible Compensation. The Matching
Contribution for each Participant employed by Waterloo Industries, Inc. in the
Pocahontas, Arkansas or Sedalia, Missouri Plant of Waterloo Industries, Inc.
shall be equal to 50% of the Participant's Elective Contributions and
Supplemental Contributions to the extent the rate of such Elective Contributions
and Supplemental Contributions in effect from time to time does not exceed 3% of
his Eligible Compensation. Notwithstanding the foregoing, no Matching
Contributions shall be made with respect to excess Elective Contributions
distributed under Paragraph 4.05, excess Supplemental Contributions distributed
under Paragraph 4.06, or Elective Contributions withdrawn under Paragraph
6.04(b), and any such Matching Contributions made with respect thereto shall be
returned to the Participating Employer pursuant to Paragraph 12.03.
Notwithstanding any other provision of this Plan to the contrary, no Matching
Contributions shall be made with respect to Elective Contributions or
Supplemental Contributions of Participants who are employed by Aristokraft, Inc.
or Master Lock Company.
4.02. Payment of Contributions. A Participating Employer's Matching
Contributions for any Plan Year shall be paid to the Trustee monthly to the
extent practicable and in any event by the time required for the filing of the
Participating Employer's federal income tax return for its fiscal year in which
such Plan Year ends, including extensions of time thereof. Elective and Matching
Contributions shall be paid to the Trustee, without interest, in cash.
4.03. Annual Additions Limitations. Notwithstanding any provisions of
this Plan, the annual additions credited to the Account of a Participant with
respect to a Plan Year shall not exceed an amount equal to the lesser of (a)
$30,000 (or, if greater, one quarter of the dollar limit then in effect under
Section 415(b)(1)(A) of the Code), or (b) 25% of the Compensation paid to the
Participant during such Plan Year, as determined in accordance with Section
415(c)(3) of the Code. If during a Plan Year a Participant is also participating
in another "defined contribution plan" (as defined in Section 414(i) of the
Code) maintained by an Employer, the foregoing limitation shall apply to the
contributions and forfeitures for such year credited to his accounts under both
plans, subject to the special limitation applicable to an employee stock
ownership plan (as defined in Section 415(c)(6) of the Code). Annual additions
are the amounts allocated to a Participant's Account during the year that
constitutes:
(i) Elective Contributions;
(ii) Matching Contributions;
(iii) Supplemental Contributions;
(iv) forfeitures; and
(v) amounts described in Section 415(l)(1) and 419(A)(d)(2)
of the Code.
For purposes of this Paragraph, the term "Employer" shall be determined pursuant
to Section 415(h) of the Code. If, after applying the limitations of this
Paragraph, there are any excess annual additions as a result of the allocation
of forfeitures, a reasonable error in estimating a Participant's Compensation,
or other facts and circumstances which the Commissioner of Internal Revenue
finds justify the application of this paragraph, then the excess amounts in a
Participant's Account shall be held unallocated in a suspense account for the
limitation year. The excess amounts shall be used to reduce Employer
contributions under this Plan for the next limitation year (and succeeding
limitation years, as necessary) for all of the Participants. Except as provided
below, excess amounts may not be distributed to Participants or former
Participants. Furthermore, if a Participant is also participating any time in a
"defined benefit plan" (as defined in Section 414(j) of the Code) maintained by
an Employer and, as a result thereof, a reduction in benefits or contributions
is required under Section 415(e) of the Code, such reduction shall be applied to
the benefits under such defined benefit plan.
If the contributions for any Plan Year would exceed the applicable limitation
hereunder, Elective Contribution's and Supplemental Contributions (together with
any income allocable thereto) may be returned to the Participant, and a portion
of the Matching Contributions which would otherwise be allocated to the
Participant's Account shall be held unallocated in a suspense account. If such a
suspense account is in existence at any time during a Plan Year, all amounts in
the suspense account shall be allocated to Participants' Accounts before any
Matching Contributions may be made for that Plan Year. No adjustment shall be
made in any such suspense account under Paragraph 5.02.
4.04. Contribution Percentages.
(a) The "actual deferral percentage", as determined under Paragraph
4.05, for the Highly Compensated Employees shall not exceed for any Plan Year
the greater of:
(i) the actual deferral percentage for all other Covered Employees,
multiplied by 1.25; or
(ii) the actual deferral percentage for all other Covered Employees,
multiplied by 2.0; provided, however, the actual deferral
percentage for the Highly Compensated Employees does not exceed
the actual deferral percentage for all other Covered Employees
by more than two percentage points.
For the purpose of the foregoing tests and Paragraph 4.05:
(i) those Covered Employees who were not directly or
indirectly eligible to have Elective Contributions
made for them at any time during the Plan Year shall
be disregarded;
(ii) if two or more plans which include cash or deferred
arrangements are considered one plan for purposes of
Section 401(a)(4) or 410(b) (other than 410(b)(2)(A)(ii)as in
effect for plan years beginning after December 31, 1988) of
the Code, the cash or deferred arrangements included in those
plans shall be treated as one arrangement; and
(iii) if a Highly Compensated Employee is a participant in
two or more cash or deferred arrangements of the
Employers, all such cash or deferred arrangements
shall be treated as one cash or deferred arrangement
for determining the actual deferral percentage of
that Highly Compensated Employee.
(b) The "actual contribution percentage", as determined under
Paragraph 4.06, for the Highly Compensated Employees shall not exceed for any
Plan Year the greater of:
(i) the actual contribution percentage for all other Covered
Employees, multiplied by 1.25; or
(ii) the actual contribution percentage for all other
Covered Employees, multiplied by 2.0; provided,
however, the actual contribution percentage for the
Highly Compensated Employees does not exceed the
actual contribution percentage for all other Covered
Employees by more than two percentage points.
For the purpose of the foregoing tests and Paragraph 4.06:
(i) those Covered Employees who were not directly or
indirectly eligible to have Matching Contributions or
Supplemental Contributions made for them at any time
during the Plan Year shall be disregarded;
(ii) if two or more plans to which employee contributions
and matching contributions are considered one plan
for purposes of Section 401(a)(4) or 410(b) (other
than 410(b)(2)(A)(ii) as in effect for plan years
beginning after December 31, 1988) of the Code, all
employee contributions and matching contributions are
to be treated as made under the same plan;
(iii) if two or more plans are permissively aggregated for
purposes of the foregoing tests, the aggregated plans
must also satisfy Sections 401(a)(4) and Section
410(b) as though they were one plan; and
(iv) if a Highly Compensated Employee is a participant in
two or more plans to which employee contributions or
matching contributions are made, all such plans shall
be treated as one plan.
4.05. Excess Elective Contributions.
(a) The actual deferral percentage for a specified group of Covered
Employees for a Plan Year shall be the average of the ratios (calculated
separately) for the Covered Employees in such group of:
(i) the amount of Elective Contributions actually paid to the Trustee
on behalf of each such Covered Employee for such Plan Year, to
(ii) his Compensation for such Plan Year.
Every Family Member of a 5-percent owner of an Employer (as defined in Section
416(i) of the Code) or of one of the ten most Highly Compensated Employees shall
be aggregated with the 5-percent owner or Highly Compensated Employee into a
single Family Group. If an Employee is required to be aggregated as a member of
more than one Family Group, all eligible Employees who are members of those
Family Groups that include that Employee are aggregated as one Family Group. The
Compensation and Elective Contributions of each member of a Family Group are
treated as if paid to (or on behalf of) one Highly Compensated Employee. The
combined actual deferral ratio of the Family Group shall be the ratio determined
by combining the Elective Contributions and Compensation of all members of the
Family Group.
Except as provided in the preceding paragraph, the Elective
Contributions and Compensation of all members of the Family Group are
disregarded in calculating the actual deferral percentage of the Covered
Employees other than Highly Compensated Employees.
The Company shall determine after the end of the Plan Year
whether the actual deferral percentage results satisfy either of the tests
contained in Paragraph 4.04(a). If neither test is satisfied, the excess amount
for each Highly Compensated Employee shall be distributed to the Participant
(together with any income allocable thereto) within twelve months following the
Plan Year for which the excess Elective Contributions were made. The excess
amount shall be determined for each Highly Compensated Employee by determining
the maximum actual deferral ratio that Highly Compensated Employees may defer
under the tests contained in Paragraph 4.04(a), and then reducing the actual
deferral ratio of those Participants whose actual deferral ratio exceeds that
maximum by an amount of sufficient size to reduce the overall actual deferral
percentage for Highly Compensated Employees to a level such that one of the
tests contained in Paragraph 4.04(a) shall be satisfied. The excess amount shall
be determined in a fashion such that the actual deferral ratio of the affected
Participants who elected the highest actual deferral ratio shall be first
lowered to the extent required to achieve compliance with the tests in Paragraph
4.04(a) or the level of the affected Participants who elected the next to the
highest actual deferral ratio. If further overall reductions are required to
achieve compliance with the tests contained in Paragraph 4.04(a), this process
is repeated until sufficient total reductions have occurred to achieve
compliance with the tests contained in Paragraph 4.04(a).
If a Highly Compensated Employee's actual deferral ratio is
determined under the family aggregation rules described above, the Family
Group's excess Elective Contributions shall be allocated among the members of
the Family Group in proportion to each member's Elective Contributions.
The amount of excess Elective Contributions to be distributed
shall be reduced by the amount of excess deferrals (as defined in Section
402(g)(2) of the Code and the applicable regulations) previously distributed for
the taxable year ending in the same Plan Year. The amount of excess deferrals to
be distributed for a taxable year shall be reduced by the amount of excess
Elective Contributions previously distributed for the Plan Year beginning in the
taxable year.
(b) The excess Elective Contributions for each Highly Compensated
Employee shall be adjusted for income or loss during the Plan Year.
(c) The income or loss allocable to the excess Elective Contributions
for the Plan Year is determined by multiplying the income or loss allocable to
Elective contributions by a fraction. The numerator of the fraction is the
amount of excess Elective Contributions for the Plan Year. The denominator of
the fraction is equal to the sum of:
(i) the total balance of the portion of the Participant's Account
attributable to Elective Contributions as of the beginning of
the Plan Year; plus
(ii) the Participants Elective Contributions for the Plan Year.
4.06. Excess Matching/Participant Contributions.
(a) The actual contribution percentage for a specified group of
Covered Employees for a Plan Year shall be the average of the ratios (calculated
separately) for the Covered Employees in such group of:
(i) the aggregate amount of Matching Contributions and
Supplemental Contributions, if any, actually paid to
the Trustee on behalf of each such Covered Employee
for such Plan Year, to
(ii) his Compensation for the Plan Year.
To the extent permitted by Treasury regulations, Elective
Contributions and nonelective Employer contributions under any other
tax-qualified retirement plan may be added to (i) above.
The Matching Contributions, Supplemental Contributions, other amounts
added to (i) above, and Compensation of each member of a Family Group (as
determined in Paragraph 4.05(a)) are treated as if paid to (or on behalf of) one
Highly Compensated Employee. The combined actual contribution ratio of the
Family Group shall be the ratio determined by combining the Matching
Contributions, Supplemental Contributions, other added amounts, and Compensation
of all members of the Family Group.
Except as provided in the preceding paragraph, the Matching
Contributions, Supplemental Contributions, other added amounts, and Compensation
of all members of the Family Group are disregarded in calculating the actual
contribution percentage of the Covered Employees other than Highly Compensated
Employees.
The Company shall determine after the end of the Plan Year whether the
actual contribution percentage results satisfy either of the tests contained in
Paragraph 4.04(b). If neither test is satisfied, the excess amount ("Excess
Aggregate Contributions") for each Highly Compensated Employee shall be
distributed to him (together with any income allocable thereto) within twelve
months following the Plan Year for which the Excess Aggregate Contributions were
made.
The excess amount shall be determined for each Highly Compensated
Employee by determining the maximum actual contribution ratio that Highly
Compensated Employees may elect under the tests contained in Paragraph 4.04(b),
and then reducing the actual contribution ratio of those Participants whose
actual contribution ratio exceeds that maximum by an amount of sufficient size
to reduce the overall actual contribution percentage for Highly Compensated
Employees to a level such that one of the tests contained in Paragraph 4.04(b)
shall be satisfied. The excess amount shall be determined in a fashion such that
the actual contribution ratio of the affected Participants who elected the
highest actual contribution ratio shall be first lowered to the extent required
to achieve compliance with the tests in Paragraph 4.04(b) or the level of the
affected Participants who elected the next to the highest actual contribution
ratio. If further overall reductions are required to achieve compliance with the
tests contained in Paragraph 4.04(b), this process is repeated until sufficient
total reductions have occurred to achieve compliance with the tests contained in
Paragraph 4.04(b).
If a Highly Compensated Employee's actual contribution ratio is
determined under the family aggregation rules described above, the Family
Group's Excess Aggregate Contributions shall be allocated among the members of
the Family Group in proportion to each member's Matching Contributions and
Supplemental Contributions.
(b) The Excess Aggregate Contributions for each Highly Compensated
Employee shall be adjusted for income or loss during the Plan Year.
(c) The income or loss allocable to the Excess Aggregate Contributions
for the Plan Year is determined by multiplying the income or loss allocable to
Matching Contributions and Supplemental Contributions by a fraction. The
numerator of the fraction is the amount of Excess Aggregate Contributions for
the Plan Year. The denominator of the fraction is equal to the sum of:
(i) the total balance of the portion of the Participant's Account
attributable to Matching Contributions and Supplemental
Contributions as of the beginning of the Plan Year; plus
(ii) the Participant's Matching Contributions and Supplemental
Contributions for the Plan Year.
4.07. Alternate Percentage Test. In the event that the actual deferral
percentage for the Highly Compensated Employees for any Plan Year is more than
the actual deferral percentage for all other Covered Employees multiplied by
125% and the actual contribution percentage for Highly Compensated Employees for
the same Plan Year is more than the actual contribution percentage for all other
Covered Employees multiplied by 125%, then the sum of the actual deferral
percentage for Highly Compensated Employees plus the actual contribution
percentage for Highly Compensated Employees for such Plan Year may not exceed
the greater of
(A) the sum of:
(1) the greater of
(a) the actual deferral percentage for all other Covered
Employees and
(b) the actual contribution percentage for all other
Covered Employees
multiplied by 125%, plus
(2) the lesser of
(a) the actual deferral percentage for all other Covered
Employees and
(b) the actual contribution percentage for all other
Covered Employees
plus two percentage points, but not in excess of 200%
of the lesser of (2)(a)or (2)(b) above, or
(B) the sum of:
(1) the lesser of
(a) the actual deferral percentage for all other Covered
Employees and
(b) the actual contribution percentage for all other
Covered Employees
multiplied by 125%, plus
(2) the greater of
(a) the actual deferral percentage for all other Covered
Employees and
(b) the actual contribution percentage for all other
Covered Employees
plus two percentage points, but not in excess of 200%
of the lesser of (2)(a) or (2)(b) above.
In the event the sum of the actual deferral percentage for Highly
Compensated Employees plus the actual contribution percentage for Highly
Compensated Employees exceeds the amount set forth in this Paragraph 4.07, the
actual contribution percentage for the Highly Compensated Employees or the
actual deferral percentage for the Highly Compensated Employees shall be reduced
in the manner provided in Paragraph 4.05, until such excess no longer exists.
ARTICLE V
PARTICIPATING INTERESTS
5.01. Separate Accounts. The Company shall maintain records to
determine the interest of each Participant under the Plan. Each Account shall be
maintained in such a manner as to show separately the portion thereof that is
attributable to each of the following items: Elective Contributions, Matching
Contributions, Supplemental Contributions, and contributions transferred or
rolled over to this Plan from another tax qualified plan, and to identify the
investment gains or losses attributable to each such item.
5.02. Adjustment of Participating Accounts. As of each Valuation Date,
the balances in the Accounts shall be adjusted in order to credit Elective,
Supplemental and Matching Contributions, if any, made on behalf of a
Participant, and contributions transferred or rolled over to this Plan by the
Participant from another tax qualified plan, if any, and income and appreciation
in his respective Accounts since the last preceding Valuation Date and to change
withdrawals and distributions, if any, and losses and depreciation in the
respective Investment Funds in which the Participant's Accounts are invested
since the last preceding Valuation Date.
5.03. Accounting Entries. Every adjustment provided to be made by this
Article V shall be considered as having been made on the applicable Valuation
Date. The Company's determination of the net value of the assets of the
Investment Funds, which shall be based upon accountings rendered by the Trustee,
and charges or credits to all Accounts shall be conclusive and binding upon all
parties having or claiming to have any interest hereunder.
5.04. Required Information. Each Participating Employer shall furnish
to the Company all such information reasonably requested by the Company to
enable it to complete the allocations hereunder, and the Company may rely in all
respects upon such information so furnished.
5.05. Transfer of Assets to or from Another Plan. If another employee
plan is merged into this Plan, for purposes of this Plan any amount attributable
to elective salary reduction contributions under Code Section 401(k) thereunder
shall be combined with amounts attributable to Elective Contributions; any
amounts attributable to employee contributions (or contributions considered as
taxable income) thereunder shall be combined with amounts attributable to
Supplemental Contributions but shall be withdrawable to the extent permitted by
the Company; and any amounts attributable to employer matching or nonelective
contributions thereunder shall be accounted for separately under this Plan and
shall be vested to at least the extent provided in such other employee plan.
The Company may, in its discretion, permit the direct
trustee-to-trustee transfer of assets to the Plan from another employee plan or
the rollover of an eligible rollover distribution within the meaning of Section
402(c)(4) of the Code on behalf of a Covered Employee, regardless of whether the
Covered Employee has become a Participant in the Plan. If such a transfer is
made through a trustee-to-trustee transfer, it shall be treated as a merger
hereunder. If such a transfer is made through a rollover of an eligible rollover
distribution, the transferred amount shall be accounted for separately under
this Plan and fully vested at all times. The Company may also, in its
discretion, permit the transfer of assets from the Plan to another employee
plan. Each Covered Employee who is not a Participant, on whose behalf an amount
has been transferred to the Plan pursuant to this Section 5.05, shall be treated
as a Participant solely for purposes of the provisions of the Plan pertaining to
rollover contributions.
ARTICLE VI
PAYMENT OF BENEFITS
6.01. Vested Interest. A Participant's interest in the Plan
attributable to Elective Contributions, Supplemental Contributions and Matching
Contributions shall be 100% vested at all times.
No amendment to the Plan's vesting schedule shall deprive a
Participant of his nonforfeitable rights to benefits accrued to the date of such
amendment. If the vesting schedule of the Plan is amended, each Participant with
at least three years of Service may elect to have his nonforfeitable percentage
determined without regard to such amendment. The period during which the
election may be made shall commence with the date the amendment is adopted and
shall end on the later of:
(i) 60 days after the amendment is adopted;
(ii) 60 days after the amendment is effective; or
(iii) 60 days after the Participant is issued written notice of the
amendment by the Company.
6.02. Manner and Time of Payment. Except as hereinafter provided, the
balance in a Participant's Account shall be distributed to him in one lump sum.
If a Participant or former Participant dies before he receives a full and
complete distribution of his interest under this Plan, the undistributed balance
of such interest shall be distributed to the beneficiary (as defined in Article
VII) next entitled thereto in one lump sum. In lieu of a lump sum distribution,
a Participant whose Settlement Date occurs for a reason stated in (i) or (ii) of
Paragraph 1.01(ee), or a beneficiary, may elect distribution in substantially
equal installments over a period not exceeding 10 years and not extending beyond
the life expectancy of the Participant or the joint life and last survivor
expectancy of the Participant and a designated beneficiary, payable as of the
same date each year. A recipient who elects distribution in installments may at
any time elect to receive the undistributed balance of his interest in a lump
sum. Distributions shall be made in cash except that a Participant with an
Account investment in the American Stock Fund who is to receive a lump sum
distribution may elect to receive a distribution from the American Stock Fund in
whole shares of American Common Stock and in cash for any fractional shares. The
amount distributable is the total amount in the Participant's Accounts valued as
of the Valuation Date coincident with or next preceding the date of
distribution.
Distribution of a Participant's interest shall be made, or shall
commence, within 12 months after his Settlement Date, or later death, but in any
event on or before the earlier of (i) the 60th day following the close of the
Plan Year in which the Participant's 65th birthday or later Settlement Date
occurs, or (ii) the Participant's Settlement Date described in Paragraph
1.01(ee)(ii). Notwithstanding the foregoing, a Participant whose balance exceeds
$3,500 shall receive a distribution prior to his 65th birthday only if he
consents thereto in writing.
Any election pursuant to this Paragraph 6.02 shall be made by filing
the appropriate form in the manner and within the time limits set by the
Company.
Notwithstanding anything else in this Plan to the contrary, a Covered
Employee's benefits must commence no later than April 1 following the calendar
year in which the Covered Employee attains age 70-1/2. Benefits must be paid (i)
over a period not longer than the life of the Covered Employee and his
designated beneficiary or (ii) over a period not extending beyond the life
expectancy of the Covered Employee or the joint life expectancies of the Covered
Employee and his designated beneficiary. If a Covered Employee dies before his
entire interest has been distributed to him, or if distribution has begun to his
designated beneficiary, the Covered Employee's entire interest (or the remaining
part of such interest if distribution has commenced) will be distributed within
five years after his death (or the death of his designated beneficiary);
provided, however, that this sentence shall not apply if the distribution of the
Covered Employee's interest has commenced and is for a term certain permitted
under (ii) and such distribution to the designated beneficiary commences within
one year after the Covered Employee's death. All distributions shall be made in
accordance with the regulations under Section 401(a)(9) of the Code including
Treasury Regulation Section 1.401(a)(9)-2.
6.03. [RESERVED].
6.04. In Service Withdrawals. Subject to such uniform and
nondiscriminatory rules as may be promulgated from time to time by the Company,
a Participant may, by filing the appropriate form with the Company (through his
Participating Employer) prior to his Severance Date, apply for a withdrawal of a
specified portion of the then value of his Account, in accordance with the
following:
(a) A Participant may, under the circumstances hereinafter specified,
apply, not more frequently than once during any 12-month period, for a hardship
withdrawal of all or any part, but not less than $500 or, if less, the amount of
his Elective Contributions and Supplemental Contributions, of his Elective
Contributions and Supplemental Contributions not previously withdrawn (excluding
earnings credited on such Elective Contributions after December 31, 1988). The
withdrawal must be for an immediate and heavy financial need of the Participant
for which funds are not reasonably available from other resources of the
Participant. A Participant shall be deemed to have an immediate and heavy
financial need if the hardship is on account of (i) unreimbursed medical
expenses incurred by the Participant, the Participant's spouse, or any
dependents, or necessary for such person to obtain medical care, (ii) the
purchase of the principal residence of the Participant (excluding regular
mortgage payments), (iii) tuition and related educational fees for
post-secondary education for the Participant, the Participant's spouse, or
dependents for the following twelve months, and (iv) the need to prevent
eviction from or foreclosure on the Participant's principal residence. A
Participant shall be deemed to have established that the amount to be withdrawn
is not reasonably available from other resources if the Participant has obtained
all other distributions and nontaxable loans available under this Plan and any
other plan maintained by the Employer. Any determination of the existence of
financial hardship and the amount to be distributed as a result thereof shall be
made by the Company in accordance with the Code and the applicable regulations
and using a uniform and nondiscriminatory standard. If approved by the Company,
such withdrawal shall not exceed the amount required to meet the need created by
the hardship including any amounts necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated to result from the withdrawal.
If a withdrawal is made, the Participant may not make Elective Contributions or
Supplemental Contributions for a period of 12 months following the date of
receipt of the distribution, and the dollar limitation of Paragraph 3.01(a)
shall be reduced for the Plan Year following the year of withdrawal by the
amount of the Elective Contributions made by the Participant during the Plan
Year of the hardship withdrawal.
(b) A Participant may, on or before March 1 of any Plan Year, request
a withdrawal of any amount (and any income allocable thereto) by which the sum
of his Elective Contributions and any other elective deferrals, as defined in
Section 402(g)(3) of the Code, by the Participant during the preceding Plan Year
exceeded the maximum amount of Elective Contributions permitted under Paragraph
3.01 for such Plan Year.
(c) If the Participant has invested in more than one Investment Fund,
the Participant shall elect on the application form the Investment Fund to be
charged. If a Participant's interest invested in such Investment Fund is less
than the amount of the withdrawal, the Participant shall further elect the order
in which his interests in the other Investment Fund or Funds shall be charged.
(d) A Participant may apply for a withdrawal of all or a portion of
his Elective Contributions Account, his Supplemental Contributions Account, his
Matching Contributions Account, if any, and his contributions transferred or
rolled over to this Plan from another tax qualified plan after he has attained
age 59 1/2. Payment of the withdrawal shall be made to the Participant as soon
as practicable after, and be based on the value of the Participant's Account as
of the Valuation Date immediately preceding such withdrawal.
6.05. Delayed Distributions. All funds under the Plan held for a
former Participant or his beneficiary on a Valuation Date which is subsequent to
such Participant's Settlement Date shall continue to be subject to valuation as
provided in Paragraph 5.02.
6.06. Information Required of Distributees. Each Participant, former
Participant and beneficiary of a deceased Participant shall file with the
Company from time to time in writing his post office address and each change of
post office address. Any communication, statement or notice addressed to such
person at his last post office address filed with the Company, or if no such
address was filed with the Company then at his last post office address as shown
in an Employer's records, if any, shall be binding on such person for all
purposes of this Plan, and neither any Employer nor the Trustee shall be
obligated to search for or ascertain the whereabouts of any Participant, former
Participant or beneficiary.
6.07. Missing Distributees. If all or any part of the interest of any
Participant, former Participant or beneficiary becomes distributable hereunder
and the whereabouts of such Participant, former Participant or beneficiary is
then unknown to the Company and the Company fails to receive a claim for such
distribution from the person entitled thereto, or from any other person validly
acting in his behalf, within two years thereafter, then the amount of such
distribution shall be forfeited as of the next Valuation Date; provided,
however, that if the person entitled to receive such distribution subsequently
claims it, the amount shall be restored. Any such forfeiture shall be applied as
soon as practicable to reduce Employer contributions under the Plan.
6.08. Break in Service. Except as hereinafter provided, any Employee
who suffers a Break in Service and who subsequently is reemployed by an Employer
shall be considered a new Employee on the date of his reemployment and his prior
period of Service shall be disregarded. If, however, the Employee had Elective
Contributions credited to his Account at the time of a Break in Service, or his
prior Service was longer than his Break in Service, his prior Service shall be
reinstated upon his reemployment.
If a former Employee is reemployed by an Employer within 12 months
following his Severance Date, the period commencing with his Severance Date and
ending with his reemployment date shall constitute Service for the purposes of
this Plan.
6.09. Direct Rollover Provision.
(a) Notwithstanding any provision of this Plan to the contrary that
would otherwise limit a distributee's election under this paragraph (a), a
distributee may elect, at the time and manner prescribed by the Plan
Administrator, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a direct
rollover.
(b) For purposes of this Section 6.09, an eligible rollover
distribution is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover distribution shall
not include: (i) any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more, (ii) any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code, and (iii) the
portion of any distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to
employer securities).
(c) For purposes of this Section 6.09, an eligible retirement plan is
(i) an individual retirement account described in Section 408(a) of the Code,
(ii) an individual retirement annuity described in Section 408(b) of the Code,
(iii) an annuity plan described in Section 403(a) of the Code, or (iv) a
qualified trust described in Section 401(a) of the Code, that accepts the
distributee's eligible rollover distribution; provided, however, in the case of
an eligible rollover distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or individual retirement
annuity.
(d) For purposes of this Section 6.09, a distributee is an Employee or
former Employee. In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or former spouse who is
the alternate payee under a "qualified domestic relations order", as defined in
Section 414(p) of the Code, are distributees with regard to the interest of the
spouse or former spouse.
(e) For purposes of this Section 6.09, a direct rollover is any
payment by the Plan to the eligible retirement plan specified by the
distributee.
ARTICLE VII
BENEFICIARIES
7.01. Designation of Beneficiaries. A Participant or former
Participant may, by filing the appropriate form with the Company during his
lifetime, designate a beneficiary or beneficiaries to whom distribution shall be
made in the event of his death prior to the full receipt of his interest under
this Plan, and he may also designate the proportions to be distributed to each
such designated beneficiary if there be more than one. The designated
beneficiary of a married Participant shall be his spouse unless (a) he has
designated a beneficiary or beneficiaries other than his spouse and (b) his
spouse (i) has consented to such designation on the appropriate form that
acknowledges its effect and is witnessed by a Plan representative or notary
public or (ii) cannot be located. Except as provided in the foregoing sentence,
any such designation may be revoked or changed by the Participant or former
Participant at any time and from time to time, by filing the appropriate form
with the Company. If there be no such designated beneficiary living upon the
death of a Participant or former Participant, or if all such designated
beneficiaries die prior to the full distribution of his interest, then the
beneficiary shall be such one or more of the surviving widow or widower, or
descendants, of such Participant or former Participant, and in such proportions
among them, as the Company shall select; but if there be none then surviving to
the knowledge of the Company, then the estate of the last survivor of the
Participant or former Participant and designated beneficiaries shall be the
beneficiary to whom the then remaining balance of such interest shall be
distributed.
7.02. Conclusive Presumption. If the Company, after reasonable
inquiry, is unable within one year to determine whether or not any designated
beneficiary did in fact survive the event that entitled him to receive
distribution of any sum hereunder, it shall be conclusively presumed that such
beneficiary did in fact die prior to such event.
ARTICLE VIII
LOANS
8.01. Availability. A Participant, other than a Participant employed
by Waterloo Industries, Inc., may make application to the Company to borrow from
the Trust an amount not less than $1,000 and not greater than the aggregate of
the amount standing to the credit of his Account that is attributable to
Elective Contributions, Supplemental Contributions, Matching Contributions and
contributions that have been transferred or rolled over to this Plan from
another tax qualified plan. The Company may, upon such uniformly applicable
conditions as it shall prescribe, make such a loan in accordance with this
Article VIII. No more than one loan may be outstanding to a Participant at any
time and a Participant may not apply for a new loan until 90 days after the
prior loan is repaid in full. A loan under the Plan shall constitute an
earmarked investment of the borrowing Participant's Account and interest paid on
such a loan shall be credited to the respective Investment Funds in accordance
with the Participant's investment election under Paragraph 9.03. A loan shall be
withdrawn from the respective Investment Funds on a pro rata basis. A former
Participant or beneficiary of a deceased Participant whose Account has not been
distributed and who is a party in interest within the meaning of Section 3(14)
of ERISA may also make an application to borrow to the extent required by
federal law.
8.02. Maximum Amount. The aggregate amount of all such loans to a
Participant shall not exceed 50% of the aggregate amount standing to the credit
of his Account under the Plan, and shall not exceed $50,000 minus the largest
outstanding Plan loan balance during the 12-month period ending the day before
the loan is made.
8.03. Promissory Note. A secured promissory note shall be delivered to
the Plan pledging as collateral a portion of the Participant's Account not less
than the amount of the borrowing. Interest on a loan shall be fixed by the
Company at a rate reasonably equivalent to prevailing market interest rates.
8.04. Repayment. The loan shall be repaid in regular installments no
less frequently than monthly, by means of payroll deductions. The term of a loan
shall not exceed 5 years unless its purpose is the purchase or construction of
the principal residence of the Participant. Prepayment of a loan in its entirety
without penalty shall be permitted at any time. Notwithstanding the foregoing,
such installments may be paid directly by the Participant to the Trustee during
any Authorized Leave of Absence or by a former Participant or beneficiary of a
deceased Participant. Loan payments shall be credited monthly to the respective
Investment Funds in accordance with the Participant's investment election under
Paragraph 9.03 in effect from time to time.
8.05. Reduction of Account Balance. Upon a Participant's termination
of employment or upon a lump sum distribution of a Participant's Accounts on a
Participant's Settlement Date under Paragraph 1.01(ee)(ii) before a loan is
repaid in full, the unpaid balance thereof, together with interest due and
payable thereon, shall become due and payable, and the Trustee shall first
satisfy the indebtedness from the amount payable to the Participant or former
Participant or his beneficiary before making any payments to the Participant or
former Participant or his beneficiary.
ARTICLE IX
INVESTMENT PROVISIONS
9.01. Trust and Trust Agreement. The assets of the Trust will be held,
invested and disposed of in accordance with the terms of the Trust Agreement.
All contributions under the Plan will be paid into the Trust, and all benefits
payable under the Plan will be paid from the Trust.
9.02. Investment Funds. The Trust shall consist of the following
separate funds:
(a) Government Securities Fund - a fund investing in a portfolio of
U.S. government and government agency securities with an emphasis on short to
intermediate maturities.
(b) Diversified Fund - a fund investing in a diversified portfolio of
common stocks, bonds, preferred stocks and other investments.
(c) Equity Fund - an equity mutual fund investment in common stocks
and other equity investments.
(d) American Stock Fund - a fund invested primarily in American Common
Stock.
(e) Short-Term Investment Fund - a fund investing in bonds,
debentures, mortgages, equipment or other trust certificates, notes, obligations
issued or guaranteed by the U.S. government and government agencies, domestic
bank certificates of deposit, domestic bankers' acceptances and repurchase
agreements, high grade commercial paper and other investments which bear a fixed
rate of return.
Pending allocation to the Investment Funds, deposits to the Plan shall
be uninvested. Any Investment Fund may, on an interim basis, be invested, in
whole or in part, in cash equivalents. Investment Funds may be added or
terminated from time to time at the option of the Company or its delegate.
9.03. Investment Elections. A Participant's Elective Contributions and
Supplemental Contributions and any amounts transferred pursuant to the Plan
pursuant to Section 5.05 shall be invested, collectively with investment gains
and losses allocated on a pro-rata basis, in the Government Securities Fund, the
Diversified Fund, the Equity Fund and the Short-Term Investment Fund, in whole
percentages which shall total 100%, as selected by the Participant. The same
investment election shall apply with respect to a Participant's Elective
Contributions and Supplemental Contributions. A separate investment election may
be made with respect to amounts transferred to the Plan through a rollover
contribution pursuant to Section 5.05. If a Participant fails to make such an
election, he shall be deemed to have selected the Short-Term Investment Fund for
100%. Each Participant shall make an investment election with his Participating
Employer in accordance with the voice response system implemented by the
Company, or, if required by the Company, by filing the appropriate election
form, on a form provided by the Company, at the time he becomes a Participant in
the Plan. A Participant or former Participant may, as of the first day of any
month, change his investment election for new deposits. As of the first day of
any month, a Participant may transfer an amount, in whole percentages,
attributable to his Elective Contributions and Supplemental Contributions and
amounts transferred to the Plan under Paragraph 5.05 from any of the Investment
Funds to another Investment Fund except as noted below with respect to the
American Stock Fund. The same election to transfer among investment funds shall
apply to amounts attributable to a Participant's Elective Contributions and
Supplemental Contributions and amounts transferred to the Plan pursuant to
Section 5.05 of the Plan. Each change in investment election and each election
to transfer among investment funds shall be made in accordance with the voice
response system implemented by the Company or, if required by the Company, by
filing the appropriate election form, on a form provided by the Company, in the
manner and within the time limits set by the Company. The foregoing shall be
subject to such additional limitations and restrictions as the Company may, from
time to time, establish.
9.04. Matching Contributions. Employer Matching Contributions shall be
invested in the same way as each Participant's Elective Contributions and
Supplemental Contributions upon which they are based; provided, however, that a
Participant may elect to invest any portion of the Matching Contributions
allocated to his Account, in whole percentages, in the American Stock Fund.
Amounts attributable to Matching Contributions may be transferred from the
American Stock Fund to one or more other Investment Funds as of the first day of
any calendar quarter in whole percentages of a Participant's interest therein.
Amounts attributable to Matching Contributions in other Investment Funds may be
transferred in whole percentages thereof into the American Stock Fund as of the
first day of any calendar quarter.
9.05. Administration of American Stock Fund. Subject to the provisions
of the Trust Agreement and Paragraphs 9.06 through 9.08, the Trustee shall
administer the American Stock Fund as follows:
(a) The assets of the American Stock Fund, including all income
thereon and increments thereto, shall be invested in American Common Stock;
provided, however, that, in order to permit orderly investment in American
Common Stock and pending such investment, the Trustee may hold uninvested any
monies received by it in or for the American Stock Fund or may invest in
collective short-term investment funds of the Trustee.
(b) As of each Valuation Date, the Trustee shall report to the
Retirement Committee the fair market value of the assets of the American Stock
Fund as of such Valuation Date, excluding any contribution made as of such
Valuation Date. Such fair market value shall be the value of the American Stock
Fund as of such Valuation Date.
(c) Upon any distribution from the American Stock Fund as a single
distribution pursuant to Paragraph 6.02 to be made in shares of American Common
Stock, all whole shares of American Common Stock distributable therefrom shall
be registered in the name of the distributee and delivered to him together with
any cash from the American Stock Fund to which the distributee is entitled.
(d) Upon any distribution from the American Stock Fund pursuant to the
provisions of Paragraph 6.02 other than as a single distribution to be made in
shares of American Common Stock, the Trustee shall retain all shares which would
otherwise be distributable to the distributee and distribute in lieu thereof
their fair market value on the Valuation Date next preceding the date of
distribution (or, if the event coincides with a Valuation Date, then on that
Valuation Date).
(e) Upon any transfer from the American Stock Fund to the Government
Securities Fund, the Diversified Fund, the Equity Fund or the Short-Term
Investment Fund pursuant to the provisions of Paragraph 9.03, the Trustee shall,
to the extent practicable, retain all shares which would otherwise have to be
liquidated by reason of said transfer and transfer in lieu thereof their fair
market value on the Valuation Date coincident with or next precedig the date as
of which such transfer is to be made.
(f) To the extent practicable, the Trustee shall exercise all rights
to buy American Common Stock (other than rights within the meaning of Paragraph
9.08(a), which shall be exercised only in accordance with Paragraph 9.08)
received with respect to any shares held in the American Stock Fund. To the
extent that there is insufficient cash in the American Stock Fund with which to
exercise any such rights, or to make distribution or transfer of the fair market
value of any stock subject to retention, the Trustee may, in its discretion sell
such rights or retained stock or any part thereof; in the case of any retained
stock so sold the fair market value thereof shall be the net proceeds of sale
instead of the fair market value. The Trustee may also obtain cash in such
manner deemed appropriate by the Trustee provided such other manner is permitted
by applicable law, will not affect the continued qualified status of the Plan or
the tax-exempt status of the Trust under the Code and will not result in a
"prohibited transaction" (as defined in the Code or ERISA).
9.06. Voting of Shares in American Stock Fund.
(a) Notwithstanding any other provision of the Plan or the Trust
Agreement to the contrary, the Trustee shall have no discretion or authority to
exercise any voting rights with respect to American Common Stock held in the
American Stock Fund except as provided in this Paragraph 9.06.
(b) Each Participant, former Participant or beneficiary shall be
entitled to direct the Trustee in writing, and the Trustee shall solicit the
written direction of such Participant, former Participant or beneficiary, as to
the manner in which any voting rights of shares of American Common Stock
attributable to his interest in the American Stock Fund are to be exercised with
respect to any matter on which holders of American Common Stock are entitled to
vote by proxy, consent or otherwise, and the Trustee shall exercise the voting
rights of such shares with respect to such matter in accordance with the
last-dated timely written direction received by the Trustee from such
Participant, former Participant or beneficiary. With respect to the voting
rights of shares of American Common Stock held in the American Stock Fund as to
which timely written directions have not been received by the Trustee as
provided in the preceding sentence, the Trustee shall exercise the voting rights
of such shares in the same manner and in the same proportion in which the voting
rights of shares as to which such directions were received by the Trustee are to
be exercised as provided in the preceding sentence. The Trustee shall combine
fractional interests of Participants, former Participants and beneficiaries in
shares of American Common Stock held in the American Stock Fund to the extent
possible so that the voting rights with respect to such matter are exercised in
a manner which reflects as accurately as possible the collective directions
given by Participants, former Participants and beneficiaries. In giving
directions to the Trustee as provided in this Paragraph 9.06(b), each
Participant, former Participant or beneficiary shall be acting as a named
fiduciary within the meaning of Section 403(a)(1) of ERISA ("Named Fiduciary")
with respect to the exercise of voting rights of shares of American Common Stock
in accordance with such directions pursuant to both the first and the second
sentences of this Paragraph 9.06(b). For purposes of this Paragraph 9.06, the
number of shares of American Common Stock attributable at any particular time to
the interest of a Participant, former Participant or beneficiary in the American
Stock Fund shall be the product of the total number of shares then held in the
American Stock Fund multiplied by a fraction the numerator of which is the
amount allocated to the American Stock Fund then in his Account and the
denominator of which is the amount allocated to the American Stock Fund then in
the Accounts of all Participants, former Participants and beneficiaries.
(c) The Trustee shall communicate or cause to be communicated to all
Participants, former Participants and beneficiaries the procedures regarding the
exercise of voting rights of shares of American Common Stock held in the
American Stock Fund. The Trustee shall distribute or cause to be distributed as
promptly as possible to all Participants, former Participants and beneficiaries
entitled to give directions to the Trustee as to the exercise of voting rights
with respect to any matter all communications and other materials, if any, that
the Trustee may receive from any person or entity (including the Company) that
are being distributed to the holders of American Common Stock and either are
directed generally to such holders or relate to any matter on which holders of
American Common Stock are entitled to vote by proxy, consent or otherwise, and
the Company shall promptly furnish to the Trustee all such communications and
other materials, if any, as are being distributed by or on behalf of American.
The Company and the Retirement Committee shall provide the Trustee with such
information, documents and assistance as the Trustee may reasonably request in
connection with any communications or distributions to Participants, former
Participants and beneficiaries as aforesaid. This information shall include the
names and current addresses of Participants, former Participants and
beneficiaries and the number of shares of American Common Stock credited to the
accounts of each of them, upon which the Trustee may conclusively rely. Anything
to the contrary in this Paragraph 9.06, the Plan or the Trust Agreement
notwithstanding, except if the Company serves as recordkeeper, to the extent
necessary to provide the Company with information necessary accurately to
maintain records of the interest in the Plan of Participants, former
Participants and beneficiaries, the Trustee shall use its best efforts to keep
confidential the direction (or the absence thereof) from each Participant,
former Participant or beneficiary in connection with the exercise of voting
rights of shares of American Common Stock held in the American Stock Fund and
the identity of such Participant, former Participant or beneficiary and not to
divulge such direction or identity to any person or entity, including, without
limitation, the Company, American and any other non-participating affiliate of
the Company and any director, officer, employee or agent thereof, it being the
intent of this Paragraph 9.06 that the Company, American and each other
non-participating affiliate of the Company and their directors, officers,
employees and agents not be able to ascertain the direction given (or not given)
by any Participant, former Participant or beneficiary in connection with the
exercise of voting rights of such shares.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of the Plan or the Trust Agreement with
respect to the exercise of voting rights of shares of American Common Stock held
in the American Stock Fund, or cause any such provision or provisions to
conflict with ERISA, or require the Trustee not to act or such voting rights not
to be exercised in accordance with such provision or provisions, then, upon
written notice thereof to the Trustee, in the case of an opinion of counsel to
the Company, or to the Company, in the case of an opinion of counsel to the
Trustee, such provision or provisions shall be given no further force or effect
in such circumstances. Except to the extent otherwise specified in such opinion,
order or decree, the Trustee shall nevertheless have no discretion or authority
in such circumstances to exercise voting rights with respect to shares of
American Common Stock held in the American Stock Fund, but shall exercise such
voting rights in accordance with the last-dated timely written directions
received from Participants, former Participants and beneficiaries to the extent
such directions have not been invalidated. To the extent the Trustee exercises
any fiduciary responsibility it may have in any circumstances with respect to
any exercise of voting rights of shares of American Common Stock held in the
American Stock Fund, the Trustee in exercising its fiduciary responsibility,
unless pursuant to the requirements of ERISA or otherwise it is unlawful to do
so, (i) shall take into account directions timely received from Participants,
former Participants and beneficiaries as being the most indicative of their best
interests with respect to the exercise of such voting rights and (ii) shall take
into consideration, in addition to any relevant financial factors bearing on any
exercise of such voting rights, the continuing job security of Participants as
employees of the Company, conditions of employment, employment opportunities and
similar matters and the prospects of Participants, former Participants and
beneficiaries for benefits under the Plan and may also take into consideration
such other relevant non-financial factors as the Trustee deems appropriate.
9.07. Tendering of Shares in American Stock Fund.
(a) Notwithstanding any other provision of the Plan or the Trust
Agreement to the contrary, the Trustee shall have no discretion or authority to
tender, deposit, sell, exchange or transfer any shares of American Common Stock
(which, for purposes of this Paragraph 9.07, shall include any rights within the
meaning of Paragraph 9.08(a)) held in the American Stock Fund pursuant to any
tender offer (as defined herein) except as provided in this Paragraph 9.07. For
purposes of this Paragraph 9.07, a "tender offer" shall mean any tender or
exchange offer for or request or invitation for tenders or exchanges of shares
of American Common Stock the consummation of which would result in any "person"
or "group" (within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended), or any affiliates or associates thereof,
becoming the beneficial owner of 10% or more of the then outstanding shares of
American Common Stock and shall include, without limitation, any such tender
offer made by or on behalf of American.
(b) Each Participant, former Participant or beneficiary shall be
entitled to direct the Trustee in writing, and the Trustee shall solicit the
written direction of such Participant, former Participant or beneficiary, as to
the tendering, depositing, selling, exchanging or transferring of shares of
American Common Stock attributable to his interest in the American Stock Fund
pursuant to any tender offer, and the Trustee shall tender, deposit, sell,
exchange or transfer such shares (or shall retain such shares in the American
Stock Fund) pursuant to such tender offer in accordance with the last-dated
timely written direction received by the Trustee from such Participant, former
Participant or beneficiary. With respect to shares of American Common Stock held
in the American Stock Fund as to which timely written directions have not been
received by the Trustee from Participants, former Participants and beneficiaries
to whose interests in the American Stock Fund such shares are attributable, such
Participants, former Participants and beneficiaries shall be deemed to have
directed the Trustee that such shares be retained in the American Stock Fund
subject to all provisions of the Plan and the Trust Agreement and not be
tendered, deposited, sold, exchanged or transferred pursuant to such tender
offer, and the Trustee shall not tender, deposit, sell, exchange or transfer any
of such shares pursuant thereto. In the event that, under the terms of such
tender offer or otherwise, any shares of American Common Stock tendered or
deposited pursuant thereto may be withdrawn, the Trustee shall use its best
efforts to solicit the written direction of each Participant, former Participant
or beneficiary as to the exercise of withdrawal rights with respect to shares of
American Common Stock that have been tendered or deposited pursuant to this
Paragraph 9.07, and the Trustee shall exercise (or refrain from exercising) such
withdrawal rights in the same manner as shall reflect the last-dated timely
written directions received with respect to the exercise of such withdrawal
rights. The Trustee shall not withdraw shares except pursuant to a timely
written direction of a Participant, former Participant or beneficiary. The
Trustee shall combine fractional interests of Participants, former Participants
and beneficiaries in shares of American Common Stock held in the American Stock
Fund to the extent possible so that such shares are tendered, deposited, sold,
exchanged or transferred, and withdrawal rights with respect thereto are
exercised, in a manner which reflects as accurately as possible the collective
directions given or deemed to have been given by Participants, former
Participants and beneficiaries in accordance with this Paragraph 9.07. In giving
or being deemed to have given directions to the Trustee as provided in this
Paragraph 9.07(b), each Participant, former Participant or beneficiary shall be
acting as a Named Fiduciary with respect to the tender, deposit, sale, exchange
or transfer of shares of American Common Stock (or the retention of such shares
in the American Stock Fund) in accordance with such directions pursuant to both
the first and second sentences of this Paragraph 9.07(b) and the exercise of (or
the refraining from exercising) withdrawal rights with respect to shares of
American Common Stock tendered or deposited pursuant to the third sentence of
this Paragraph 9.07(b).
(c) In the event of a tender offer as to which Participants, former
Participants and beneficiaries are entitled to give directions as provided in
this Paragraph 9.07, the Trustee shall communicate or cause to be communicated
to all Participants, former Participants and beneficiaries entitled to give
directions the procedures relating to their right to give directions as Named
Fiduciaries to the Trustee and in particular the consequences of any failure to
provide timely written direction to the Trustee. In the event of such a tender
offer, the Trustee shall distribute or cause to be distributed as promptly as
possible to all Participants, former Participants and beneficiaries entitled to
give directions to the Trustee with respect to such tender offer all
communications and other materials, if any, that the Trustee may receive from
any person or entity (including the Company) that are being distributed to the
holders of the securities to whom such tender offer is directed and either are
directed generally to such holders or relate to such tender offer, and the
Company shall promptly furnish to the Trustee all such communications and other
materials, if any, as are being distributed by or on behalf of American. The
Company and the Retirement Committee shall provide the Trustee with such
information, documents and assistance as the Trustee may reasonably request in
connection with any communications or distributions to Participants, former
Participants and beneficiaries as aforesaid. This information shall include the
names and current addresses of Participants, former Participants and
beneficiaries and the number of shares of American Common Stock credited to the
accounts of each of them, upon which the Trustee may conclusively rely. Anything
to the contrary in this Paragraph 9.07, the Plan or the Trust Agreement
notwithstanding, except if the Company serves as recordkeeper, to the extent
necessary to provide the Company with information necessary accurately to
maintain records of the interest in the Plan of Participants, former
Participants and beneficiaries, the Trustee shall use its best efforts to keep
confidential the direction (or the absence thereof) from each Participant,
former Participant or beneficiary with respect to any tender offer and the
identity of such Participant, former Participant or beneficiary and not to
divulge such direction or identity to any person or entity, including, without
limitation, the Company, American and any other non-participating affiliate of
the Company and any director, officer, employee or agent thereof, it being the
intent of this Paragraph 9.07 that the Company, American and each other
non-participating affiliate of the Company and their directors, officers,
employees and agents not be able to ascertain the direction given (or not given)
or deemed to have been given by any Participant, former Participant or
beneficiary with respect to any tender offer.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of the Plan or the Trust Agreement with
respect to the tendering, depositing, sale, exchange or transfer of shares of
American Common Stock held in the American Stock Fund or the exercise of any
withdrawal rights with respect to shares tendered or deposited pursuant to a
tender offer, or cause any such provision or provisions to conflict with ERISA,
or require the Trustee not to act or such shares not to be tendered, deposited,
sold, exchanged or transferred or such withdrawal rights not to be exercised in
accordance with such provision or provisions, then, upon written notice thereof
to the Trustee, in the case of an opinion of counsel to the Company, or to the
Company, in the case of an opinion of counsel to the Trustee, such provision or
provisions shall be given no further force or effect in such circumstances.
Except to the extent otherwise specified in such opinion, order or decree, the
Trustee shall nevertheless have no discretion or authority in such circumstances
to tender, deposit, sell, transfer or exchange shares of American Common Stock
held in the American Stock Fund (or the retention of such shares in the American
Stock Fund) pursuant to a tender offer or with respect to the exercise of (or
refraining from exercising) any withdrawal rights with respect to shares
tendered or deposited pursuant to a tender offer, but shall act in accordance
with the last-dated timely written directions received from Participants, former
Participants and beneficiaries to the extent such directions have not been
invalidated. To the extent the Trustee exercises any fiduciary responsibility it
may have in any circumstances with respect to the tendering, depositing, sale,
exchange or transfer of shares of American Common Stock held in the American
Stock Fund or the exercise of any withdrawal rights with respect to shares
tendered or deposited pursuant to a tender offer, the Trustee in exercising its
fiduciary responsibility, unless pursuant to the requirements of ERISA or
otherwise it is unlawful to do so, (i) shall take into account directions timely
received from Participants, former Participants and beneficiaries as being the
most indicative of their best interests with respect to a tender offer and (ii)
shall take into consideration, in addition to any relevant financial factors
bearing on any sale, exchange or transfer or any exercise of withdrawal rights,
the continuing job security of Participants as employees of the Company,
conditions of employment, employment opportunities and similar matters and the
prospects of Participants, former Participants and beneficiaries for benefits
under the Plan and may also take into consideration such other relevant
non-financial factors as the Trustee deems appropriate.
(e) The proceeds of any sale, exchange or transfer of shares of
American Common Stock pursuant to the direction of a Participant, former
Participant or beneficiary in accordance with this Paragraph 9.07 shall be
allocated to his Account in the same manner, in the same proportion and as of
the same date as were the shares sold, exchanged or transferred and shall be
governed by the provisions of this Paragraph 9.07(e) and all other applicable
provisions of the Plan and the Trust Agreement. Such proceeds shall be deemed to
be held in the American Stock Fund and shall be subject to this Paragraph
9.07(e) and the other applicable provisions of the Plan and the Trust Agreement;
provided, however, that, to the extent necessary to segregate any return, loss,
gain or income on or from such proceeds (or on or from any reinvestment thereof)
from any return, loss, gain or income on or from the remainder of the American
Stock Fund, the Company or the Retirement Committee shall take or cause to be
taken all such action so that (i) such proceeds (and any income or proceeds
therefrom) shall be segregated and held by the Trustee in one or more separate
investment funds and (ii) appropriate adjustments shall be made from time to
time in the amount allocated to the American Stock Fund in the Accounts. Any
such separate investment fund shall be otherwise governed by the other
applicable provisions of the Plan and the Trust Agreement. Any such proceeds
(and any income or proceeds therefrom) shall be invested or reinvested in the
same type of instruments and in the same manner as provided in Paragraph 9.03
with respect to the Short-Term Investment Fund and subject to the same
provisions in the Plan and the Trust Agreement governing investment and
reinvestment of the Short-Term Investment Fund.
9.08. Exercise of Certain Rights Held in American Stock Fund.
(a) Notwithstanding any other provision of the Plan or the Trust
Agreement to the contrary, the Trustee shall have no discretion or authority to
sell, exercise, exchange or retain any Preferred Share Purchase Rights of
American (or any rights issued by American in substitution or replacement
therefor) held in the American Stock Fund ("rights") except as provided in this
Paragraph 9.08; provided, however, that the sale, retention or taking of any
other action relating to rights pursuant to any tender offer shall be governed
by the provisions of Paragraph 9.07 and not by the provisions of this Paragraph
9.08; and provided, further, that, in connection with any transfer of shares of
American Common Stock held in the American Stock Fund as provided in the Plan or
the Trust Agreement, the Trustee shall transfer with such shares any rights that
are not then transferable separately from such shares.
(b) In the event that any rights held in the American Stock Fund shall
become transferable separately from the shares of American Common Stock held in
the American Stock Fund or shall become exercisable, each Participant, former
Participant or beneficiary shall be entitled to direct the Trustee in writing,
and the Trustee shall solicit the written direction of such Participant, former
Participant or beneficiary, to sell, exercise or exchange the rights which are
attributable to his interest in the American Stock Fund or to retain such rights
in the American Stock Fund, and the Trustee shall sell, exercise, exchange or
retain such rights in accordance with the last-dated timely written direction
received by the Trustee from such Participant, former Participant or
beneficiary; provided, however, in the case of a Participant, former Participant
or beneficiary who directs the exercise of such rights, the rights shall be
exercised only to the extent cash is available in the Participant's, former
Participant's or beneficiary's accounts in the American Stock Fund or cash can
be obtained pursuant to paragraph (e) of this Paragraph 9.08. With respect to
rights as to which timely written directions have not been received by the
Trustee as provided in the preceding sentence, the Trustee shall in its sole
discretion sell, exercise, exchange or retain such rights. The Trustee shall
combine fractional interests in rights of Participants, former Participants and
beneficiaries who have given timely written directions as provided in the first
sentence of this Paragraph 9.08(b) to the extent possible so that the rights
attributable to their interests in the American Stock Fund are sold, exercised,
exchanged or retained in a manner which reflects as accurately as possible the
collective directions given by them. In giving directions to the Trustee as
provided in this Paragraph 9.08(b), each Participant, former Participant or
beneficiary shall be acting as a Named Fiduciary with respect to the sale,
exercise, exchange or retention of rights in accordance with such directions.
(c) In the event that any rights shall become transferable separately
from the shares of American Common Stock held in the American Stock Fund or
shall become exercisable, the Trustee shall communicate or cause to be
communicated to all Participants, former Participants and beneficiaries entitled
to give directions with respect thereto as provided in this Paragraph 9.08 the
procedures relating to their right to give directions as Named Fiduciaries to
the Trustee and in particular the consequences of any failure to provide timely
written directions to the Trustee and shall distribute or cause to be
distributed as promptly as possible to such Participants, former Participants
and beneficiaries all communications and other materials, if any, that the
Trustee may receive from any person or entity (including the Company) that are
being distributed to holders of such rights and either are directed generally to
such holders or relate to such rights, and the Company shall promptly furnish to
the Trustee all such communications and other materials, if any, as are being
distributed by or on behalf of American. The Company and the Retirement
Committee shall provide the Trustee with such information, documents and
assistance as the Trustee may reasonably request in connection with any
communications or distributions to Participants, former Participants and
beneficiaries as aforesaid. This information shall include the names and current
addresses of Participants, former Participants and beneficiaries, the number of
rights credited to the accounts of each of them and the amount of cash available
in their accounts in the American Stock Fund, upon which the Trustee may
conclusively rely. Anything to the contrary in this Paragraph 9.08, the Plan or
the Trust Agreement notwithstanding, except if the Company serves as
recordkeeper, to the extent necessary to provide the Company with information
necessary accurately to maintain records of the interest in the Plan of
Participants, former Participants and beneficiaries, the Trustee shall use its
best efforts to keep confidential the direction (or the absence thereof) from
each Participant, former Participant or beneficiary with respect to such rights
and the identity of such Participant, former Participant or beneficiary and not
to divulge such direction or identity to any person or entity, including,
without limitation, the Company, American and any other non-participating
affiliate of the Company and any director, officer, employee or agent thereof,
it being the intent of this Paragraph 9.08 that the Company, American and each
other non-participating affiliate of the Company and their directors, officers,
employees and agents not be able to ascertain the direction given (or not given)
by any Participant, former Participant or beneficiary with respect to any
rights.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of the Plan or the Trust Agreement with
respect to the sale, exercise, exchange or retention of any rights held in the
American Stock Fund, or cause any such provision or provisions to conflict with
ERISA, or require the Trustee not to act or such rights not to be sold,
exercised, exchanged or retained in accordance with such provision or
provisions, then, upon written notice thereof to the Trustee, in the case of an
opinion of counsel to the Company, or to the Company, in the case of an opinion
of counsel to the Trustee, such provision or provisions shall be given no
further force or effect in such circumstances. Except to the extent otherwise
specified in such opinion, order or decree, the Trustee shall nevertheless have
no discretion or authority in such circumstances to sell, exercise, exchange or
retain such rights as to which written directions were received from
Participants, former Participants and beneficiaries, but shall act with respect
to such rights in accordance with the last-dated timely written directions
received from Participants, former Participants and beneficiaries to the extent
such directions have not been invalidated. To the extent the Trustee exercises
any discretion or fiduciary responsibility it may have in any circumstances with
respect to the sale, exercise, exchange or retention of any rights held in the
American Stock Fund, the Trustee in exercising its fiduciary responsibility,
unless pursuant to the requirements of ERISA or otherwise it is unlawful to do
so, (i) shall take into account directions timely received from Participants,
former Participants and beneficiaries as being the most indicative of their best
interests with respect to the sale, exercise, exchange or retention of such
rights and (ii) shall take into consideration, in addition to any relevant
financial factors bearing on any sale, exercise, exchange or retention of such
rights, the continuing job security of Participants as employees of the Company,
conditions of employment, employment opportunities and similar matters and the
prospects of Participants, former Participants and beneficiaries for benefits
under the Plan and may also take into consideration such other relevant
non-financial factors as the Trustee deems appropriate.
(e) If practicable and to the extent necessary to exercise rights
attributable to the interest of any Participant, former Participant or
beneficiary in the American Stock Fund, the Trustee shall sell such portion of
the rights attributable to such interest as will enable the Trustee to apply the
proceeds therefrom to the exercise of the remaining portion of such rights or
the Trustee may obtain cash in such other manner deemed appropriate by the
Trustee provided such other manner is permitted by applicable law, will not
affect the continued qualified status of the Plan or the tax-exempt status of
the Trust under the Code and will not result in a "prohibited transaction" (as
defined in the Code or ERISA).
(f) The proceeds of any sale, exercise or exchange of rights pursuant
to the direction of a Participant, former Participant or beneficiary in
accordance with this Paragraph 9.08 shall be allocated to his Account in the
same manner, in the same proportion and as of the same date as were the shares
to which the sold, exercised or exchanged rights were attributable and shall be
governed by the provisions of this Paragraph 9.08(f) and all other applicable
provisions of the Plan and the Trust Agreement. Such proceeds shall be deemed to
be held in the American Stock Fund and shall be subject to this Paragraph
9.08(f) and the other applicable provisions of the Plan and the Trust Agreement;
provided, however, that, to the extent necessary to segregate any return, loss,
gain or income on or from such proceeds (or on or from any reinvestment thereof)
from any return, loss, gain or income on or from the remainder of the American
Stock Fund, the Company or the Retirement Committee shall take or cause to be
taken all such action so that (i) such proceeds and any income or proceeds
therefrom shall be segregated and held by the Trustee in one or more separate
investment funds and (ii) appropriate adjustments shall be made from time to
time in the amount allocated to the American Stock Fund in the Accounts. Any
such separate investment fund shall be otherwise governed by the other
applicable provisions of the Plan and the Trust Agreement. Any such proceeds
(and any income or proceeds therefrom) shall be invested or reinvested in the
same type of instruments and in the same manner as provided in Paragraph 9.03
with respect to the Short-Term Investment Fund and subject to the same
provisions of the Plan and the Trust Agreement governing the investment and
reinvestment of the Short-Term Investment Fund.
ARTICLE X
ADMINISTRATION
10.01. Fiduciaries.
(a) The Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under this Plan
and the Trust Agreement or delegated to them by the Company. The Board of
Directors of American Brands, Inc. shall have the sole authority to appoint and
remove the Trustee and the members of the Trusts Investment Committee of
American Brands, Inc. and to amend or terminate, in whole or in part, the Trust.
The Board of Directors of the Company shall have the sole authority to amend or
terminate, in whole or in part, this Plan and to appoint and remove the members
of the Retirement Committee. The Company shall be the Plan administrator for the
purposes of ERISA and shall have the responsibility for the administration of
this Plan, which responsibility is specifically described in this Plan and the
Trust Agreement, except that the Retirement Committee shall have the sole
responsibility for the performance of those administrative duties specifically
given it as described in this Plan. The Executive Committee of the Board of
Directors of American Brands, Inc. shall have the sole authority to appoint any
investment manager. Except to the extent delegated to another investment
manager, the Trustee shall have the responsibility for the administration and
management of the assets held under the Trust, all as specifically provided in
the Trust Agreement. The Trusts Investment Committee of American Brands, Inc.
shall have the sole authority to vote proxies with respect to any securities
held in the Trust, except for proxies with respect to American Common Stock held
in the American Stock Fund.
(b) Each Fiduciary may rely upon any direction, information, or action
of another Fiduciary with respect to matters within the responsibility of such
other Fiduciary as being proper under this Plan or any funding instrument and is
not required under this Plan or funding instrument to inquire into the propriety
of any such direction, information, or action. To the maximum extent permitted
by law, it is intended under this Plan that each Fiduciary shall be responsible
for the proper exercise of its own powers, duties, responsibilities, and
obligations under this Plan and shall not be responsible for any act or failure
to act of another Fiduciary. To the maximum extent permitted by ERISA, no other
Fiduciary shall be liable for any loss which may result from a decision of an
investment manager with respect to Plan assets under its control.
(c) To the maximum extent permitted by applicable law, the Company
shall indemnify the members of the Board of Directors of the Participating
Employers, the members of the Retirement Committee, the members of the Board of
Directors of American Brands, Inc. and its Executive Committee, the members of
the Trusts Investment Committee of American Brands, Inc. and any other employee
of the Company who may be delegated responsibility under the Plan and save them
and each of them harmless from the effects and consequences of their acts,
omissions, and conduct in their official capacity except to the extent that such
effects and consequences shall result from their own willful misconduct.
10.02. Claims Procedure. The Retirement Committee shall make all
determinations as to the right of any person to a benefit. Any denial by the
Retirement Committee of the claim for benefits under the Plan by a Participant
or beneficiary shall be stated in writing by the Retirement Committee and
delivered or mailed to the Participant or beneficiary within 90 days after
receipt by the Retirement Committee; and such notice shall set forth the
specific reasons for the denial. In the event of a denial of a claim, a claimant
may notify the Retirement Committee in writing within 60 days after receipt of
written denial of the claim that the claimant wishes a review of the denial of
the claim and present to the Retirement Committee a written statement of the
claimant's position. The Retirement Committee shall act upon such request for
review within 60 days after receipt thereof unless special circumstances require
further time, but in no event later than 120 days after receipt. If the
Retirement Committee confirms the denial in whole or in part, the Retirement
Committee shall present in a written notice to the claimant the specific reasons
for denial and specific references to the Plan provisions on which the decision
was based, in a manner calculated to be understood by the claimant.
10.03. ERISA Compliance. The Company shall exercise such authority and
responsibility as it deems appropriate in order to comply with ERISA and
governmental regulations issued thereunder relating to records of Participants'
benefits under the Plan; notifications to Participants; annual registration with
the Internal Revenue Service; and annual reports to the Department of Labor.
10.04. Fiduciary Powers. The Retirement Committee shall have such
duties and powers as may be necessary to discharge its duties hereunder,
including, but not by way of limitation, the following:
(a) to construe and interpret the Plan, decide all questions
of eligibility and determine the manner and time of payment
of any benefits hereunder;
(b) to prescribe procedures to be followed by Participants
or beneficiaries filing applications for benefits;
(c) to prepare and distribute, in such manner as the Company
determines to be appropriate, information explaining the Plan;
(d) to receive from the Employers, the Trustee, and Participants
such information as shall be necessary for the proper
administration of the Plan;
(e) to prepare such annual reports with respect to the
administration of the Plan as are reasonable and appropriate;
to submit annually to the Board of Directors of the Company a
report showing in reasonable detail the assets of the Plan and
giving a brief account of the operation of the Plan for the
preceding Plan Year;
(f) to receive, review, and keep on file (as it deems convenient or
proper) reports of the financial condition, and of the receipts
and disbursements, of the Trust;
(g) to direct the Trustee with respect to the payment of benefits;
and
(h) to employ agents, attorneys, accountants, or other persons
(who also may be employed by any Employer or the Trustee), and
to allocate or delegate to them such powers, rights, and
duties as the Retirement Committee may consider necessary or
advisable to properly carry out the administration of the
Plan, including maintaining the accounts of Participants,
provided that such allocation or delegation, and the
acceptance thereof by such agents, attorneys, accountants, or
other persons, shall be in writing.
10.05. Administrative Rules. The Company and the Retirement Committee
may adopt such rules as they deem necessary, desirable or appropriate. All rules
and decisions shall be uniformly and consistently applied to all Participants in
similar instances. When making a determination or calculation, the Company or
the Retirement Committee shall be entitled to rely upon information furnished by
a Participant or beneficiary, an Employer or the legal counsel of an Employer.
10.06. Committee Procedures. The Retirement Committee may act at a
meeting or in writing without a meeting. The Retirement Committee shall elect
one of its members as chairman, and appoint a secretary, who may or may not be a
Committee member. The secretary shall keep a record of all meetings and forward
all necessary communications to the Company. The Retirement Committee may adopt
such bylaws and regulations as it deems desirable for the conduct of its
affairs. All decisions of the Retirement Committee shall be made by the vote of
the majority including actions in writing taken without a meeting.
10.07 Plan Expenses. All reasonable expenses in connection with the
administration of the Plan, including fees of the Trustee and its counsel or
agents, expenses incident to investments of the Trust and any federal, state or
other taxes levied against the Trust, fees of accountants, actuaries, attorneys,
and investment managers and any other proper expenses of administering the Plan
as determined by the Retirement Committee, shall be paid from the Trust;
provided, however, that the Company may pay such expenses directly.
ARTICLE XI
AMENDMENTS AND TERMINATION
11.01. Reserved Powers. The Company shall have the power at any time
and from time to time to amend, replace or terminate, in whole or in part, this
Plan; provided, however, that no amendment, under any circumstances, may be
adopted, the effect of which would be: (a) to revest in any Employer any
interest in the assets of the Plan or any part thereof, or (b) to decrease,
either directly or indirectly, the accrued benefit of any Participant (except as
permitted by Code Section 411(d)(6) and applicable regulations and rulings);
except that amendments may be so made if, in the opinion of counsel for the
Company, such action is necessary to qualify, or maintain the qualification of,
this Plan under the provisions of Section 401 of the Code. Notwithstanding any
other provision of this Plan, each Participating Employer reserves the right to
completely discontinue its contributions hereunder and its participation in this
Plan at any time.
11.02. Vesting on Plan Termination. Upon the complete discontinuance
of contributions under the Plan by all Participating Employers, and regardless
of any formal corporate action, or upon the complete termination of the Plan,
all Participants shall have a nonforfeitable, 100% vested interest in their
Account balance. Upon a partial termination of the Plan by operation of law, the
foregoing sentence of this Paragraph 11.02 shall apply to the Participants with
respect to whom the Plan is being terminated.
11.03. Plan Merger. In the case of any merger or consolidation of the
Plan with, or transfer of Plan assets or liabilities to, any other plan,
provision shall be made so that each Participant in the Plan on the date thereof
(if the Plan then terminated) would receive a benefit immediately after the
merger, consolidation or transfer which is equal to or greater than the benefit
he would have been entitled to receive immediately prior to the merger,
consolidation or transfer if the Plan had then terminated.
11.04. Successor Employer. In the event of the disposition of an
operating unit by the Company or another Participating Employer whereby a
successor person, firm or company shall continue to carry on all or a
substantial part of its business, and such successor shall elect to carry on the
provisions of this Plan in such manner as is satisfactory to the Company, the
Company may cause the assets of the Plan allocable to the Employees of such
operating unit to be transferred to the successor funding agent. In the absence
of such a transfer, distribution may be made with respect to such Employees as
if the date of disposition constituted the Settlement Date of each such
Employee.
ARTICLE XII
MISCELLANEOUS
12.01. Interest Non-Transferable. Except as may be required by a
qualified domestic relations order, benefits under this Plan shall not in any
way be subject to the debts or other obligations of any Participant, former
Participant or beneficiary, and may not be voluntarily or involuntarily sold,
transferred or assigned.
12.02. Action by Participating Employers. Any action by the Company or
other Participating Employer regarding participation in or amendment or
termination of this Plan shall be evidenced by a resolution of its board of
directors (or an authorized committee of such board) certified by its secretary
or assistant secretary under its corporate seal, or by written instrument
executed by any person or persons, including the Retirement Committee,
authorized by its board of directors (or any authorized committee of such board)
or stockholders to take such action. All actions taken in administration of this
Plan shall be taken by the appropriate officers of the Company or other
employees of the Company authorized to take such actions by such officers.
12.03. Exclusive Benefit. The Participating Employers shall have no
right, title or interest in the assets of the Trust, nor will any part of the
assets of the Trust at any time revert to any Participating Employer or be used
for, or diverted to, purposes other than for the exclusive benefit of
Participants or their beneficiaries, or for defraying Plan expenses, except as
follows:
(a) If the Internal Revenue Service initially determines that the
Plan, as applied to any Participating Employer, does not meet the requirements
of a "qualified plan" under Section 401(a) of the Internal Revenue Code, the
assets of the Trust attributable to contributions made by that Participating
Employer under the Plan shall be returned to that Employer within one year of
the date of denial of qualification of the Plan as applied to that Participating
Employer.
(b) If a contribution or a portion of a contribution is made by a
Participating Employer as a result of a mistake of fact, such contribution or
portion of a contribution shall not be considered to have been contributed to
the Trust by that Employer and, after having been reduced by any losses of the
Trust attributable thereto, shall be returned to that Participating Employer
within one year of the date the amount is paid to the Trust.
(c) Each contribution made by a Participating Employer is conditioned
upon the continued qualification of the Plan and the deductibility of such
contribution as an expense for federal income tax purposes and, therefore, to
the extent that a contribution is made by a Participating Employer to the Plan
for a period for which the Plan is not a qualified plan or the deduction for a
contribution made by a Participating Employer is disallowed, then such
contribution, or portion of a contribution, after having been reduced by any
losses of the Trust attributable thereto shall be returned to that Participating
Employer within one year of the date of determination of the nonqualified status
of the Plan or the date of disallowance of the deduction.
12.04. Gender and Number. Where the context admits, words in the
masculine gender shall include the feminine and neuter genders, the singular
shall include the plural and the plural shall include the singular.
12.05. Right to Discharge. Every Employee and Participant shall be
subject to dismissal from the service of every and all Employers to the same
extent as if this Plan had never been created.
12.06. Absence of Guaranty. No Employer in any way guarantees the
Trust against loss or depreciation. The liability of the Trustee or the Company
to make any payment or distribution under the Plan is limited to the available
assets of the Trust.
12.07. Headings. The headings of Articles and Paragraphs are included
solely for convenience of reference and are not intended in any way to modify or
otherwise to affect the text of the Plan.
ARTICLE XIII
TOP-HEAVY RULES
13.01. Top-Heavy Determination.
(a) The Plan is top-heavy for a Plan Year if:
(i) the top-heavy ratio for the Plan exceeds 60% and the Plan is
not part of a required aggregation group or a permissive
aggregation group;
(ii) the Plan is part of a required aggregation group, but
not part of a permissive aggregation group, and the
top-heavy ratio for the required aggregation group
exceeds 60%; or
(iii) the Plan is part of a required aggregation group and
part of a permissive aggregation group and the
top-heavy ratio for every permissive aggregation
group exceeds 60%.
(b) The top-heavy ratio is a fraction:
(i) the numerator of which is the sum of the present
value of accrued benefits under the aggregate defined
benefit plan or plans for all key employees
(including any part of the accrued benefit
distributed in the 5-year period ending on the
determination date(s)) and the sum of account
balances under the aggregate defined contribution
plan or plans for all key employees as of the
determination date(s); and
(ii) the denominator of which is the sum of the present
values of accrued benefits under the aggregate
defined benefit plan or plans (including any part of
the accrued benefit distributed in the 5-year period
ending on the determination date(s)) for all
Participants and the sum of the account balances
under the aggregate defined contribution plan or
plans for all Participants as of the determination
date(s).
Both the numerator and the denominator are determined in accordance with Section
416 of the Code and the applicable regulations. The account balances under a
defined contribution plan in both the numerator and denominator of the top-heavy
ratio are adjusted for any distribution of an account balance made in the 5-year
period ending on the determination date. The value of account balances and the
present value of accrued benefits will be determined as of the most recent
valuation date that falls within or ends with the 12-month period ending on the
determination date, except as provided in Section 416 of the Code and the
applicable regulations for the first and second plan years of a defined benefit
plan. The account balances and accrued benefits will be disregarded if the
Participant:
(i) is not a key employee but was a key employee in a prior year; or
(ii) has not been credited with at least one Hour of
Service with any Employer at any time during the
5-year period ending on the determination date.
The calculation of the top-heavy ratio, and the extent to which distributions,
rollovers, and transfers are taken into account will be made in accordance with
Section 416 of the Code and the applicable regulations. Proportional subsidies
and nondeductible employee contributions are ignored in computing the top-heavy
ratio. Nonproportional subsidies are considered in computing the top-heavy
ratio. When aggregating plans, the value of account balances and accrued
benefits will be calculated using the determination dates that fall within the
same calendar year.
(c) A required aggregation group consists of:
(i) each qualified plan of an Employer in which at least
one key employee participates or participated at any
time during the determination period (regardless of
whether the plan has terminated); and
(ii) any other qualified plan of an Employer which enables
a plan described in subparagraph (i) to meet the
requirements of Sections 401(a)(4) or 410 of the
Code.
(d) A permissive aggregation group consists of:
(i) the required aggregation group; and
(ii) any other plan or plans of the Employers 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) A key employee is any Employee or former Employee (and the
Beneficiaries of an Employee) who at any time during the determination period
was:
(i) an officer of an Employer with annual compensation exceeding 50%
of the dollar limitation under Section 415(b)(1)(A) of the Code;
(ii) an owner (or considered an owner under Section 318 of
the Code) of one of the ten largest interests in an
Employer if the individual's annual compensation
exceeds the dollar limitation;
(iii) a 5-percent owner of an Employer; or
(iv) a 1-percent owner of an Employer with annual compensation
exceeding $150,000.
(f) A non-key employee is an Employee who is not a key employee,
including an Employee who is a former key employee.
(g) The determination period is the Plan Year containing the
determination date and the four preceding Plan Years.
(h) For the first Plan Year, December 31, 1988 is the determination
date and the valuation date. For any other Plan Year, the last day of the
preceding Plan Year is the determination date and the valuation date.
(i) Solely for determining if the Plan, or any other plan included in
a required aggregation group of which this Plan is a part, is top-heavy the
accrued benefit of an Employee other than a key employee shall be determined
under (i) the method, if any, that uniformly applies for accrual purposes under
all plans maintained by the group, or (ii) if there is no such method, as if the
benefit accrued not more rapidly than the slowest accrual rate permitted under
the fractional accrual rate of Section 411(b)(1)(C) of the Code.
13.02. Minimum Contributions. Notwithstanding Paragraph 4.01 for any
Plan Year for which the Plan is top-heavy, each Employer shall make such
additional contributions as shall be necessary to provide contributions for each
Covered Employee eligible to participate under Paragraph 2.01 who is not a key
employee equal to 3% of that Participant's Compensation. The minimum
contribution under this Paragraph applies even though under other Plan
provisions the Employee would not otherwise be entitled to receive an allocation
or would have received a lesser allocation for the year because:
(i) the individual failed to complete 1,000 Hours of Service;
(ii) the individual failed to make mandatory contributions to the Plan;
or
(iii) the individual's Compensation is less than a stated amount.
13.03. Special Annual Additions Limitation. In any Plan Year for which
the Plan is top-heavy, the fraction 1.0 shall be used in place of the fraction
1.25 in applying the limitations in Paragraph 4.03 to a Participant who has also
participated in a qualified defined benefit plan of an Employer.
EXHIBIT 99b1
AMERICAN BRANDS, INC.
MASTER DEFINED CONTRIBUTION PLAN TRUST
THIS AGREEMENT made as of the first day of January, 1992, by and between
AMERICAN BRANDS, INC., a corporation organized under the laws of the State of
Delaware (hereinafter referred to as the "Company") and THE NORTHERN TRUST
COMPANY, an Illinois corporation, of Chicago, Illinois, as Trustee (hereinafter
referred to as the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company and certain of the Company's subsidiaries have adopted
and may hereafter adopt defined contribution employee pension benefit plans
("Separate Plans") for the benefit of their respective employees (the current
Separate Plans being set forth in Schedule A attached hereto); and
WHEREAS, the Company and certain of the Company's subsidiaries have
heretofore established separate trusts complying with the requirements of the
Employee Retirement Income Security Act of 1974 ("ERISA") for the investment of
the assets of the Separate Plans and desire to appoint the Trustee as successor
trustee under certain of such trusts; and
WHEREAS, the members of the Company's Trusts Investment Committee (the
"Committee") common to all of the Separate Plans have been designated under each
Separate Plan as named fiduciaries with respect to the management and control of
the assets of such Separate Plans; and
WHEREAS, all or part of the assets of each Separate Plan will be
transferred to the Trustee under this Agreement as successor trustee, pursuant
to the authority granted by the board of directors of the employer sponsoring
such Separate Plan; and
WHEREAS, the trust assets so transferred from time to time will constitute
a trust fund to be held hereunder for the benefit of the Separate Plans; and
WHEREAS, the Trustee is willing to hold and administer such trust assets
pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Company and the Trustee do hereby covenant and
agree as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS
For the purpose of this Agreement:
1.1 "American Common Stock" means Common Stock of American Brands, Inc., a
Delaware corporation, as now constituted and any other common stock into which
it may be reclassified;
1.2 "Beneficiary" means a person designated to receive a benefit under a
Separate Plan after the death of a Participant;
1.3 "Board of Directors" means the Board of Directors of the Company;
1.4 "Code" means the Internal Revenue Code of 1986, as amended from time to
time, the regulations issued thereunder and any successor statute thereto;
1.5 "Committee" means the Trusts Investment Committee appointed by the
Board of Directors which has the responsibility for allocating the assets of the
Fund among the Separate Accounts and for assuring that no Separate Plan violates
any provision of ERISA limiting the acquisition or holding of securities or
other property of the Company or any Subsidiary, and which is deemed for
purposes of ERISA to be a named fiduciary with respect to the management and
control of the assets of the Separate Plans;
1.6 "Company" means American Brands, Inc. and any corporation which is the
successor thereto and which elects to become a party to this Agreement by
resolution adopted within ninety (90) days after the effective date of the
consolidation, merger or sale of assets by which the succession is effected;
1.7 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and the regulations issued thereunder;
1.8 "Fund" means all of the following considered collectively: the American
Stock Fund, the Diversified Fund, the Equity Fund, the Short-Term Investment
Fund, the Government Securities Fund, the Frozen GIC Fund and any other funds
designated pursuant to Article FIVE. Each may be composed of a Separate Account
or a group of Separate Accounts designated by the Committee;
1.9 "Investment Advisor" means an Investment Manager or an Investment
Trustee or, in cases where the Committee has assumed investment responsibility
for a Separate Account, the Committee;
1.10 "Investment Manager" means an investment manager registered as an
investment advisor under the Investment Advisors Act of 1940, a bank as defined
in that Act or an insurance company qualified to manage, acquire or dispose of
any asset of the Fund, which is appointed by the Company to manage a Separate
Investment Account, except that the Trustee shall have no responsibility to
determine whether a person or entity acting as an Investment Manager meets or
continues to meet this definition;
1.11 "Investment Trustee" means the trustee appointed by the Company to
manage a Separate Investment Trust Account; 1.12 "Participant" means a person
who is an employee or former employee of the Company or of a Subsidiary and who
is or was actually participating in a Separate Plan; 1.13 "Plan Account" means
the interest of each Separate Plan in the Fund; 1.14 "Separate Account" means a
Separate Investment Account, a Separate Investment Trust Account or a Separate
Insurance Contract Account;
1.15 "Separate Insurance Contract Account" means assets of the Fund
allocated by the Committee to a Separate Account for investment in insurance
contracts directed by the Committee;
1.16 "Separate Investment Account" means assets of the Fund allocated by
the Committee to the American Stock Fund and each Separate Account to be managed
by an Investment Manager or the Committee;
1.17 "Separate Investment Trust Account" means assets of the Fund allocated
by the Committee to a Separate Account to be managed by an Investment Trustee;
1.18 "Separate Plan" means any separate defined contribution employee
pension benefit plan for employees of the Company or any Subsidiary for which
this Agreement has been adopted as the funding medium;
1.19 "Subtrust" means assets of a Separate Investment Account which are
held by a subtrustee designated by the Company and which are subject to the
management of an Investment Manager;
1.20 "Subsidiary" means a subsidiary or affiliated organization of the
Company which adopts this Agreement; and
1.21 "Trustee" means The Northern Trust Company and any successor thereto
as trustee or trustees of the Fund under this Agreement.
ARTICLE TWO
VALUATION AND ALLOCATION
The Trustee shall hold the Fund as a commingled fund or commingled funds in
which each Separate Plan shall be deemed to have a proportionate undivided
interest in the fund or funds in which it participates, except that each fund or
asset identified by the Committee as allocable to a particular Plan Account,
herein referred to as an "identified fund" or "identified asset," and income,
appreciation or depreciation and expenses attributable to a particular Plan
Account or to an identified asset thereof, shall be allocated or charged to that
Plan Account. Contributions to a Separate Plan shall be designated by the
administrator of the Separate Plan as allocable, and distributions from a
Separate Plan shall be designated by the administrator of the Separate Plan as
chargeable, to a particular Plan Account and shall be so allocated or charged.
The beneficial interest of each Separate Plan shall be available solely to
satisfy the benefits payable under such Separate Plan and shall not be available
to satisfy the benefits payable under any other Separate Plan or any other plan.
At the close of business at the end of each month and at such other times as
directed by the Committee, the Trustee shall periodically determine the value of
each Plan Account on such basis as the Trustee and the Committee shall from time
to time agree (considering the fair market value of the assets initially
received from the predecessor trustee and subsequent contributions and
distributions, net income, net appreciation or depreciation and expenses
attributable to the Separate Plan) and shall render a statement thereof to the
Committee and the administrator of the respective Separate Plan within ninety
(90) days after each valuation date.
ARTICLE THREE
DISTRIBUTIONS
The Trustee shall make distributions from the Fund in cash or in kind to
such persons, in such amounts, at such times and in such manner as the
administrator of each Separate Plan shall from time to time direct in writing,
or the administrator of a Separate Plan may, after written notice to the Trustee
of its assumption of the responsibility, make the distributions from the Fund
through a commercial banking account held in the name of this Trust in a
federally insured banking institution (including the Trustee) which is used
exclusively for that purpose and to which the Trustee shall make such deposits
from the Fund as the administrator of the Separate Plan may from time to time
direct in writing, except that the Trustee may reserve such reasonable amount as
the Trustee shall deem necessary to pay any income or death taxes attributable
to a distribution or may require such release from a taxing authority or such
indemnification from the distributee as the Trustee shall deem necessary for the
protection of the Trustee. The Trustee shall have no responsibility to ascertain
whether any direction received by the Trustee from the administrator of a
Separate Plan in accordance with the preceding sentence is proper and in
compliance with the terms of the Separate Plan or to see to the application of
any distribution or, with respect to deposits made to a commercial banking
account, to account for funds retained therein or disbursed by the administrator
of the Separate Plan or to prepare any informational returns for tax purposes as
to distributions made therefrom.
The Trustee shall not be liable for any distribution made in good faith
without actual notice or knowledge of the changed condition or status of any
recipient. If any distribution made by the Trustee is returned unclaimed, the
Trustee shall notify the administrator of the Separate Plan from which the
distribution was made and shall dispose of the distribution as the administrator
of the Separate Plan shall direct.
ARTICLE FOUR
SEPARATE ACCOUNTS AND INVESTMENT ADVISORS
The Committee may from time to time (and shall with respect to any asset of
the Fund as to which the Trustee is for any reason unwilling or unable to act)
effect the establishment of one or more Separate Accounts, and one or more
Subtrusts, by written instrument delivered to the Trustee and shall designate
assets of the Fund to be allocated thereto, and direct the Trustee to transfer
assets of the Fund to or from a Separate Account or Subtrust. The following
provisions shall apply to the Separate Accounts:
4.1 With respect to each Separate Investment Account where an Investment
Manager has been appointed, the Investment Manager thereof shall acknowledge by
written notice to the Committee and to the Trustee that the Investment Manager
is a fiduciary with respect to the assets allocated thereto. The Investment
Manager shall have custody of any portion of the assets invested in a collective
trust fund operated by the Investment Manager or its banking affiliate, and the
subtrustee of a Subtrust shall have custody of any portion of the assets
allocated to it by the Committee; the Trustee shall have custody of all other
assets and shall act with respect to those assets only as directed by the
Investment Manager.
4.2 With respect to each Separate Investment Trust Account, the Trustee and
the Investment Trustee thereof shall execute an investment trust agreement with
respect thereto. The Investment Trustee shall have custody of such portion of
the assets as the Committee may from time to time determine; the Trustee shall
have custody of all other assets and shall act with respect to those assets only
as directed by the Investment Trustee.
4.3 With respect to each Separate Insurance Contract Account, with assets
allocated thereto the Trustee shall purchase or continue in effect such
insurance contracts, including annuity contracts and policies of life insurance,
as the Committee shall direct, the issuing company may credit those assets to
its general account or to one or more of its separate accounts, and the Trustee
shall act with respect to those contracts only as directed by the Committee.
4.4 The Committee may by written notice to the Trustee assume investment
responsibility for a Separate Account or for assets held in any cash account
maintained by the Trustee. With respect to assets or Separate Accounts over
which the Committee has assumed investment responsibility, the Trustee, acting
only as directed by the Committee, shall enter into such agreements as are
necessary to facilitate any investment, including agreements entering into a
limited partnership, Subtrust or the participation in real estate funds. The
Trustee shall not make any investment review of, or consider the propriety of
holding or selling, or vote any assets over which the Committee has assumed
investment responsibility.
4.5 With respect to each Separate Account, the Investment Advisor thereof
(or with respect to those assets in a cash account over which the Committee has
assumed investment responsibility, the Committee) shall have the investment
powers granted to the Trustee by Article SIX, as limited by 7.1 through 7.3, as
if all references therein to the Trustee referred to the Investment Advisor (or
the Committee).
4.6 The Committee may also direct the Trustee to lend securities of the
Fund held by the Trustee by entering into a written agreement with the Trustee.
The terms of the agreement between the Committee and the Trustee shall be
consistent with Department of Labor Prohibited Transaction Exemption 81-6 or any
successor exemption. The written agreement between the Committee and the Trustee
shall direct the Trustee to enter into a loan agreement with a borrower or
borrowers. The Trustee shall transfer securities to the borrower and invest the
collateral received in exchange for the securities. Notwithstanding anything in
this Agreement to the contrary, the borrower shall have the authority and
responsibility to vote securities it has borrowed. The Trustee shall maintain a
record of the market value of the loaned securities and shall be paid reasonable
compensation as agreed to by the Trustee and the Committee.
ARTICLE FIVE
INVESTMENT OF THE FUND
Except as otherwise provided in this Agreement, the Fund shall be composed
of assets of the American Stock Fund, the Diversified Fund, the Equity Fund, the
Short-Term Investment Fund, the Government Securities Fund, the Frozen GIC Fund
which shall be invested as herein provided and such other funds as may be
designated from time to time by the Committee. The administrator of each
Separate Plan shall direct the Trustee with respect to the allocation of assets
of the Separate Plan to the Funds and with respect to transfers among such
Funds. Pending directions to allocate contributions among the Funds, the Trustee
shall hold the contributions in a separate account invested in short-term
investments, including common or collective short-term investment funds of the
Trustee.
5.1 American Stock Fund. The American Stock Fund shall comprise such
contributions made to each Separate Plan as shall be specified by the
administrator of the Separate Plan, together with such portion of assets
transferred from the predecessor trustees as designated by the Committee,
together with the proceeds thereof, the income therefrom and any increment
thereon. With respect to the American Stock Fund the Trustee shall have the duty
to the extent practicable to buy American Common Stock, as now constituted and
any other common stock into which it may be reclassified, and pending investment
in American Common Stock or distribution from the American Stock Fund to invest
in collective short-term investment funds of the Trustee.
The Trustee may keep such portion of the American Stock Fund in cash or
cash balances as the Committee may from time to time direct for liquidity
purposes without liability for the payment of interest thereon.
Except for the short-term investment of cash, the Company has limited the
investment power of the Trustee in the American Stock Fund to the purchase of
American Common Stock. The Trustee shall not be liable for following the
provisions of this Agreement with respect to such investment in and retention of
American Common Stock and investment in and retention of any Preferred Share
Purchase Rights should such rights become transferable separately from American
Common Stock and of any security into which such rights may be exchanged and the
Company (which has the authority to do so under the laws of the State of
Delaware) agrees to indemnify the Trustee from any liability, loss and expense,
including reasonable legal fees and expenses which the Trustee may sustain by
reason thereof. This paragraph shall survive the termination of this Agreement.
5.2 Diversified Fund. The Diversified Fund shall comprise such
contributions made to each Separate Plan as shall be specified by the
administrator of the Separate Plan, together with such portion of assets
transferred from the predecessor trustees as designated by the Committee,
together with the proceeds thereof, the income therefrom and any increment
thereon. The Diversified Fund shall be invested and reinvested, without
distinction between principal and income, as the Trustee may be directed by and
in the sole discretion of the Investment Manager. In the absence of directions
from the Investment Manager the Trustee shall have no power, duty or authority
to invest the Diversified Fund except as expressly provided in 5.8.
5.3 Equity Fund. The Equity Fund shall comprise such contributions made to
each Separate Plan as shall be specified by the administrator of the Separate
Plan together with such portion of assets transferred from the predecessor
trustees as designated by the Committee, together with the proceeds thereof, the
income therefrom and any increment thereon. The Equity Fund shall be invested
and reinvested, without distinction between principal and income, as the Trustee
may be directed by and in the sole discretion of the Investment Manager. In the
absence of directions from the Investment Manager the Trustee shall have no
power, duty or authority to invest the Equity Fund except as expressly provided
in 5.8.
5.4 Short-Term Investment Fund. The Short-Term Investment Fund shall
comprise such contributions made to each Separate Plan as shall be specified by
the administrator of the Separate Plan, together with such portion of assets
transferred from the predecessor trustees as designated by the Committee,
together with the proceeds thereof, the income therefrom and any increment
thereon. The Short-Term Investment Fund shall be invested and reinvested,
without distinction between principal and income, in common or collective
short-term investment funds of the Trustee, consisting principally or entirely
of any and all bonds, debentures, mortgages, equipment or other trust
certificates, notes, obligations issued or guaranteed by the United States
Government or its agencies, domestic bank certificates of deposit, domestic
bankers' acceptances and repurchase agreements, and high grade commercial paper,
all of which shall bear a fixed rate of return and are intended to minimize
market fluctuations. The Trustee shall not be liable for any loss to or
diminution of the Short-Term Investment Fund resulting from any action taken or
omitted except if due to the failure of the Trustee to diversify the investments
thereof so as to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so, or due to the failure of the
Trustee to act with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of like
character and with like aims.
In lieu of investment in common or collective short-term investment funds
of the Trustee, the Company may appoint an Investment Manager to direct the
Trustee as to the investment of the Short-Term Investment Fund in which event
the Short-Term Investment Fund shall be invested as directed by the Investment
Manager. In the absence of directions from the Investment Manager the Trustee
shall have no power, duty or authority to invest the Short-Term Investment Fund
except as expressly provided in 5.8.
5.5 Government Securities Fund. The Government Securities Fund shall
comprise such contributions made to each Separate Plan as shall be specified by
the administrator of the Separate Plan, together with the proceeds thereof, the
income therefrom and any increment thereon. The Government Securities Fund shall
be invested and reinvested, without distinction between principal and income, as
the Trustee may be directed by and in the sole discretion of the Investment
Manager. In the absence of directions from the Investment Manager the Trustee
shall have no power, duty or authority to invest the Government Securities Fund
except as expressly provided in 5.8.
5.6 Frozen GIC Fund. The Frozen GIC Fund shall comprise such guaranteed
interest contracts with insurance carriers which have been transferred from the
predecessor trustees. No new contributions or transfers to the Frozen GIC Fund
may be made by a Separate Plan. The Trustee shall have no investment
responsibility for such contracts and the Trustee shall act with respect to such
contracts only as directed by the Committee. Upon maturity of a guaranteed
interest contract held in the Frozen GIC Fund, the Committee shall direct the
Trustee to transfer the proceeds thereof to another Fund. In the absence of
directions from the Committee the Trustee shall have no power, duty or authority
to invest the Frozen GIC Fund or to take any action with respect to any
guaranteed investment contracts in the Frozen GIC Fund.
5.7 The Investment Manager of the Diversified Fund, Equity Fund, Short-Term
Investment Fund or Government Securities Fund at any time and from time to time
may issue orders for the purchase or sale of securities directly to a broker,
and in order to facilitate such transaction the Trustee upon request shall
execute and deliver appropriate trading authorizations. Written notification of
the issuance of each such order shall be given promptly to the Trustee by the
Investment Manager, and the execution of each such order shall be confirmed to
the Trustee by the broker. Such notification shall be authority for the Trustee
to pay for securities purchased in accordance with industry practice and to
deliver securities sold in accordance with industry practice, as the case may
be.
5.8 In the absence of instructions from the Investment Manager to the
contrary, the Trustee shall invest all or any portion of any cash or cash
balances in the Diversified Fund, Equity Fund, Short-Term Investment Fund or
Government Securities Fund, in common or collective short-term investment funds
of the Trustee. The Trustee shall not be liable for interest on any cash
balances it holds uninvested following the directions from the Investment
Manager.
ARTICLE SIX
POWERS OF TRUSTEE
Except as otherwise provided in this Agreement, the Trustee shall hold,
manage, care for and protect the assets of the Fund and shall have until
distribution thereof the following powers and, except to the extent inconsistent
herewith, those now or hereafter conferred by law:
6.1 To retain any asset originally included in the Fund or subsequently
added thereto;
6.2 To invest and reinvest the assets without distinction between income
and principal in bonds, stocks, mortgages, notes, options, futures contracts,
limited partnership interests or other property of any kind, real or personal,
foreign or domestic, and at the direction of the Committee to enter into
insurance contracts, including group annuity contracts;
6.3 To deposit any part or all of the assets with the Trustee or its
affiliate as trustee or another person or entity acting as trustee of any
collective or group trust fund which is now or hereafter maintained as a medium
for the collective investment of funds of pension, profit-sharing or other
employee benefit plans, and which is qualified under Section 401(a) and exempt
from taxation under Section 501(a) of the Code, and to withdraw any part or all
of the assets so deposited; any assets deposited with the trustee of a
collective or group trust fund shall be held and invested by the trustee
thereunder pursuant to all the terms and conditions of the trust agreement or
declaration of trust establishing the fund, which are hereby incorporated herein
by reference and shall prevail over any contrary provision of this Agreement;
6.4 To deposit cash in any depository, including the banking department of
the Trustee or its affiliate and any organization acting as a fiduciary with
respect to the Fund;
6.5 To hold any part of the assets in cash without liability for interest,
pending investment thereof or the payment of expenses or making of distributions
therewith;
6.6 To cause any asset, real or personal, to be held in a corporate
depository or federal book entry account system or registered in the Trustee's
name or in the name of a nominee or in such other form as the Trustee deems best
without disclosing the trust relationship, provided, however, that the Trustee
shall retain responsibility with respect to assets so held to the same extent as
if the Trustee retained custody thereof;
6.7 To vote, either in person or by general or limited proxy, or refrain
from voting, any corporate securities for any purpose; to exercise or sell any
subscription or conversion rights; to consent to and join in or oppose any
voting trusts, reorganizations, consolidations, mergers, foreclosures and
liquidations and in connection therewith to deposit securities and accept and
hold other property received therefor;
6.8 To lease any assets for any period of time though commencing in the
future or extending beyond the term of the Trust;
6.9 To borrow money from any lender, to extend or renew any indebtedness
and to mortgage or pledge any assets;
6.10 To sell at public or private sale, contract to sell, convey, exchange,
transfer and otherwise deal with the assets, and to sell put and covered call
options from time to time for such price and upon such terms as the Trustee sees
fit; the Company acknowledges that the Trustee may reverse any credits made to
the Fund by the Trustee prior to receipt of payment in the event that payment is
not received;
6.11 To employ agents, attorneys and proxies and to delegate to any one or
more of them any power, discretionary or otherwise, granted to the Trustee;
6.12 To compromise, contest, prosecute or abandon claims in favor of or
against the Fund;
6.13 To transfer the situs of any assets to any jurisdiction as often as
the Trustee deems it advantageous to the Fund, appointing a substitute to itself
to act with respect thereto; and in connection therewith, to delegate to the
substitute trustee any or all of the powers given to the Trustee, which may
elect to act as advisor to the substitute trustee and shall receive reasonable
compensation for so acting; and to remove any acting substitute trustee and
appoint another, or reappoint itself, at will;
6.14 To lend securities held by the Trustee and to receive and invest
collateral provided by the borrower, all pursuant to a written agreement with
the Committee; and
6.15 To perform other acts necessary or appropriate for the proper
administration of the Fund, execute and deliver necessary instruments and give
full receipts and discharges.
ARTICLE SEVEN
LIMITATIONS ON POWERS
For purposes of this Agreement, the powers and responsibilities allocated
to the Trustee shall be limited as follows.
7.1 The powers of the Trustee shall be exercisable for the exclusive
purpose of providing benefits to the Participants and Beneficiaries under the
Separate Plans and in accordance with the standards of a prudent man under
ERISA.
7.2 Subject to 7.1 and 7.3 and Article FIVE, the Trustee shall diversify
the investments of that portion of the Fund of which it has investment
responsibility so as to minimize the risk of large losses.
7.3 The Trustee shall not make any investment review of, consider the
propriety of holding or selling, or vote other than as directed by the
Investment Advisor, any assets of the Fund allocated to a Separate Account in
accordance with Article FOUR, except that the limitation imposed upon the
Trustee by this paragraph shall not apply to any assets of the Fund loaned by
the Trustee pursuant to 4.6, and except, further, that if the Trustee shall not
have received contrary instructions from the Investment Advisor of a Separate
Account the Trustee shall invest for short-term purposes any cash of that
Separate Account in its custody in bonds, notes and other evidences of
indebtedness having a maturity date not beyond five years from the date of
purchase, United States Treasury Bills, commercial paper, banker's acceptances
and certificates of deposit, undivided interests or participations therein and
(if subject to withdrawal on a daily or weekly basis) participations in common
or collective funds composed thereof and regulated investment companies.
7.4 Voting of Shares in American Stock Fund.
(a) Notwithstanding any other provision of a Separate Plan or this
Agreement to the contrary, the Trustee shall have no discretion or authority to
exercise any voting rights with respect to American Common Stock held in the
American Stock Fund except as provided in this 7.4.
(b) Each Participant or Beneficiary shall be entitled to direct the Trustee
in writing, and the Trustee shall solicit the written direction of such
Participant or Beneficiary, as to the manner in which any voting rights of
shares of American Common Stock attributable to his interest in the American
Stock Fund are to be exercised with respect to any matter on which holders of
American Common Stock are entitled to vote by proxy, consent or otherwise, and
the Trustee shall exercise the voting rights of such shares with respect to such
matter in accordance with the last-dated timely written direction received by
the Trustee from such Participant or Beneficiary. With respect to the voting
rights of shares of American Common Stock held in the American Stock Fund as to
which timely written directions have not been received by the Trustee as
provided in the preceding sentence and any shares of American Common Stock which
are unallocated to accounts of Participants or Beneficiaries, the Trustee shall
exercise the voting rights of such shares in the same manner and in the same
proportion in which the voting rights of shares as to which such directions were
received by the Trustee are to be exercised as provided in the preceding
sentence. The Trustee shall combine fractional interests of Participants and
Beneficiaries in shares of American Common Stock held in the American Stock Fund
to the extent possible so that the voting rights with respect to such matter are
exercised in a manner which reflects as accurately as possible the collective
directions given by Participants and Beneficiaries. In giving directions to the
Trustee as provided in this paragraph (b), each Participant or Beneficiary shall
be acting as a named fiduciary within the meaning of Section 403(a)(1) of ERISA
("Named Fiduciary") with respect to the exercise of voting rights of shares of
American Common Stock in accordance with such directions pursuant to both the
first and the second sentences of this paragraph (b).
(c) The Trustee shall communicate or cause to be communicated to all
Participants and Beneficiaries the procedures regarding the exercise of voting
rights of shares of American Common Stock held in the American Stock Fund. The
Trustee shall distribute or cause to be distributed as promptly as possible to
all Participants and Beneficiaries entitled to give directions to the Trustee as
to the exercise of voting rights with respect to any matter all communications
and other materials, if any, that the Trustee may receive from any person or
entity (including the Company, any Subsidiary and any other subsidiary or
affiliated organization of the Company) that are being distributed to the
holders of American Common Stock and either are directed generally to such
holders or relate to any matter on which holders of American Common Stock are
entitled to vote by proxy, consent or otherwise, and the Company shall promptly
furnish to the Trustee all such communications and other materials, if any, as
are being distributed by or on behalf of the Company, any Subsidiary or any
other subsidiary or affiliated organization of the Company. The Company and the
administrator of each Separate Plan shall provide the Trustee with such
information, documents and assistance as the Trustee may reasonably request in
connection with any communications or distributions to Participants and
Beneficiaries as aforesaid. This information shall include the names and current
addresses of Participants and Beneficiaries, the number of shares of American
Common Stock credited to each Participant's or Beneficiary's account and the
number of shares of American Common Stock not yet allocated thereto, upon which
the Trustee may conclusively rely. Anything to the contrary in this Agreement or
a Separate Plan notwithstanding, except if the Company or Subsidiary serves as
recordkeeper, to the extent necessary to provide the Company or Subsidiary with
information necessary accurately to maintain records of Participant and
Beneficiary account balances, the Trustee shall use its best efforts to keep
confidential the direction (or the absence thereof) from each Participant or
Beneficiary in connection with the exercise of voting rights of shares of
American Common Stock held in the American Stock Fund and the identity of such
Participant or Beneficiary and not to divulge such direction or identity to any
person or entity, including, without limitation, the Company, any Subsidiary and
any other subsidiary or affiliated organization of the Company and any director,
officer, employee or agent thereof, it being the intent of this 7.4 that the
Company, each Subsidiary and each other subsidiary or affiliated organization of
the Company and their directors, officers, employees and agents not be able to
ascertain the direction given (or not given) by any Participant or Beneficiary
in connection with the exercise of voting rights of such shares.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of this Agreement with respect to the
exercise of voting rights of shares of American Common Stock held in the
American Stock Fund, or cause any such provision or provisions to conflict with
ERISA, or require the Trustee not to act or such voting rights not to be
exercised in accordance with such provision or provisions, then, upon written
notice thereof to the Trustee, in the case of an opinion of counsel to the
Company, or to the Company, in the case of an opinion of counsel to the Trustee,
such provision or provisions shall be given no further force or effect in such
circumstances. Except to the extent otherwise specified in such opinion, order
or decree, the Trustee shall nevertheless have no discretion or authority in
such circumstances to exercise voting rights with respect to shares of American
Common Stock held in the American Stock Fund, but shall exercise such voting
rights in accordance with the last-dated timely written directions received from
Participants and Beneficiaries to the extent such directions have not been
invalidated. To the extent the Trustee exercises any fiduciary responsibility it
may have in any circumstances with respect to any exercise of voting rights of
shares of American Common Stock held in the American Stock Fund, the Trustee in
exercising its fiduciary responsibility, unless pursuant to the requirements of
ERISA or otherwise it is unlawful to do so, (i) shall take into account
directions timely received from Participants and Beneficiaries as being the most
indicative of their best interests with respect to the exercise of such voting
rights and (ii) shall take into consideration, in addition to any relevant
financial factors bearing on any exercise of such voting rights, the continuing
job security of Participants as employees of the Company, conditions of
employment, employment opportunities and similar matters and the prospects of
Participants and Beneficiaries for benefits under the Separate Plan and may also
take into consideration such other relevant non-financial factors as the Trustee
deems appropriate.
7.5 Tendering of Shares in American Stock Fund.
(a) Notwithstanding any other provision of a Separate Plan or this
Agreement to the contrary, the Trustee shall have no discretion or authority to
tender, deposit, sell, exchange or transfer any shares of American Common Stock
(which, for purposes of this 7.5, shall include any rights within the meaning of
7.6(a) hereof) held in the American Stock Fund pursuant to any tender offer (as
defined herein) except as provided in this 7.5. For purposes of this 7.5, a
"tender offer" shall mean any tender or exchange offer for or request or
invitation for tenders or exchanges of shares of American Common Stock the
consummation of which would result in any "person" or "group" (within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended), or any affiliates or associates thereof, becoming the beneficial owner
of 10% or more of the then outstanding shares of American Common Stock and shall
include, without limitation, any such tender offer made by the Company, any
Subsidiary or any other subsidiary or affiliated organization of the Company.
(b) Each Participant or Beneficiary shall be entitled to direct the Trustee
in writing, and the Trustee shall solicit the written direction of such
Participant or Beneficiary, as to the tendering, depositing, selling, exchanging
or transferring of shares of American Common Stock attributable to his interest
in the American Stock Fund pursuant to any tender offer received by the Trustee,
and the Trustee shall tender, deposit, sell, exchange or transfer such shares
(or shall retain such shares in the American Stock Fund) pursuant to such tender
offer in accordance with the last-dated timely written direction received by the
Trustee from such Participant or Beneficiary. With respect to shares of American
Common Stock held in the American Stock Fund as to which timely written
directions have not been received by the Trustee from Participants and
Beneficiaries to whose interests in the American Stock Fund such shares are
attributable, such Participants and Beneficiaries shall be deemed to have
directed the Trustee that such shares be retained in the American Stock Fund
subject to all provisions of the Separate Plan and this Agreement and not be
tendered, deposited, sold, exchanged or transferred pursuant to such tender
offer, and the Trustee shall not tender, deposit, sell, exchange or transfer any
of such shares pursuant thereto. As to any shares of unallocated American Common
Stock held by the Trustee, the Trustee shall tender the same proportion thereof
as the shares of American Common Stock as to which the Trustee has received
written instructions from Participants and Beneficiaries to tender bears to all
shares of American Common Stock allocated to Participant and Beneficiary
accounts. In the event that, under the terms of such tender offer or otherwise,
any shares of American Common Stock tendered or deposited pursuant thereto may
be withdrawn, the Trustee shall use its best efforts to solicit the written
direction of each Participant or Beneficiary as to the exercise of withdrawal
rights with respect to shares of American Common Stock that have been tendered
or deposited pursuant to this 7.5, and the Trustee shall exercise (or refrain
from exercising) such withdrawal rights in the same manner as shall reflect the
last-dated timely written directions received with respect to the exercise of
such withdrawal rights. The Trustee shall not withdraw shares except pursuant to
a timely written direction of a Participant or Beneficiary. As to any shares of
unallocated American Common Stock held by the Trustee, the Trustee shall
withdraw the same proportion thereof as the shares of American Common Stock as
to which the Trustee has received written instructions from Participants and
Beneficiaries to withdraw bears to all shares of American Common Stock allocated
to Participant and Beneficiary accounts. The Trustee shall combine fractional
interests of Participants and Beneficiaries in shares of American Common Stock
held in the American Stock Fund to the extent possible so that such shares are
tendered, deposited, sold, exchanged or transferred, and withdrawal rights with
respect thereto are exercised, in a manner which reflects as accurately as
possible the collective directions given or deemed to have been given by
Participants and Beneficiaries in accordance with this 7.5. In giving or being
deemed to have given directions to the Trustee as provided in this paragraph
(b), each Participant or Beneficiary shall be acting as a Named Fiduciary with
respect to the tender, deposit, sale, exchange or transfer of shares of American
Common Stock (or the retention of such shares in the American Stock Fund) in
accordance with such directions pursuant to both the first and second sentences
of this paragraph (b) and the exercise of (or the refraining from exercising)
withdrawal rights with respect to shares of American Common Stock tendered or
deposited pursuant to the third sentence of this paragraph (b).
(c) In the event of a tender offer as to which Participants and
Beneficiaries are entitled to give directions as provided in this 7.5, the
Trustee shall communicate or cause to be communicated to all Participants and
Beneficiaries entitled to give directions the procedures relating to their right
to give directions as Named Fiduciaries to the Trustee and in particular the
consequences of any failure to provide timely written direction to the Trustee.
In the event of such a tender offer, the Trustee shall distribute or cause to be
distributed as promptly as possible to all Participants and Beneficiaries
entitled to give directions to the Trustee with respect to such tender offer all
communications and other materials, if any, that the Trustee may receive from
any person or entity (including the Company, any Subsidiary and any other
subsidiary or affiliated organization of the Company) that are being distributed
to the holders of the securities to whom such tender offer is directed and
either are directed generally to such holders or relate to such tender offer,
and the Company shall promptly furnish to the Trustee all such communications
and other materials, if any, as are being distributed by or on behalf of the
Company, any Subsidiary or any other subsidiary or affiliated organization of
the Company. The Company and the administrator of each Separate Plan shall
provide the Trustee with such information, documents and assistance as the
Trustee may reasonably request in connection with any communications or
distributions to Participants and Beneficiaries as aforesaid. This information
shall include the names and current addresses of Participants and Beneficiaries,
the number of shares of American Common Stock credited to each Participant's or
Beneficiary's account and the number of shares not yet allocated thereto, upon
which the Trustee may conclusively rely. Anything to the contrary in this
Agreement or a Separate Plan notwithstanding, except if the Company or
Subsidiary serves as recordkeeper, to the extent necessary to provide the
Company or Subsidiary with information necessary accurately to maintain records
of Participant and Beneficiary account balances, the Trustee shall use its best
efforts to keep confidential the direction (or the absence thereof) from each
Participant or Beneficiary with respect to any tender offer and the identity of
such Participant or Beneficiary and not to divulge such direction or identity to
any person or entity, including, without limitation, the Company, any Subsidiary
and any other subsidiary or affiliated organization of the Company and any
director, officer, employee or agent thereof, it being the intent of this 7.5
that the Company, each Subsidiary and each other subsidiary or affiliated
organization of the Company and their directors, officers, employees and agents
not be able to ascertain the direction given (or not given) or deemed to have
been given by any Participant or Beneficiary with respect to any tender offer.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of this Agreement with respect to the
tendering, depositing, sale, exchange or transfer of shares of American Common
Stock held in the American Stock Fund or the exercise of any withdrawal rights
with respect to shares tendered or deposited pursuant to a tender offer, or
cause any such provision or provisions to conflict with ERISA,or require the
Trustee not to act or such shares not to be tendered, deposited, sold, exchanged
or transferred or such withdrawal rights not to be exercised in accordance with
such provision or provisions, then, upon written notice thereof to the Trustee,
in the case of an opinion of counsel to the Company, or to the Company, in the
case of an opinion of counsel to the Trustee, such provision or provisions shall
be given no further force or effect in such circumstances. Except to the extent
otherwise specified in such opinion, order or decree, the Trustee shall
nevertheless have no discretion or authority in such circumstances to tender,
deposit, sell, transfer or exchange shares of American Common Stock held in the
American Stock Fund (or the retention of such shares in the American Stock Fund)
pursuant to a tender offer or with respect to the exercise of (or refraining
from exercising) any withdrawal rights with respect to shares tendered or
deposited pursuant to a tender offer, but shall act in accordance with the
last-dated timely written directions received from Participants and
Beneficiaries to the extent such directions have not been invalidated. To the
extent the Trustee exercises any fiduciary responsibility it may have in any
circumstances with respect to the tendering, depositing, sale, exchange or
transfer of shares of American Common Stock held in the American Stock Fund or
the exercise of any withdrawal rights with respect to shares tendered or
deposited pursuant to a tender offer, the Trustee in exercising its fiduciary
responsibility, unless pursuant to the requirements of ERISA or otherwise it is
unlawful to do so, (i) shall take into account directions timely received from
Participants and Beneficiaries as being the most indicative of their best
interests with respect to a tender offer and (ii) shall take into consideration,
in addition to any relevant financial factors bearing on any sale, exchange or
transfer or any exercise of withdrawal rights, the continuing job security of
Participants as employees of the Company, conditions of employment, employment
opportunities and similar matters and the prospects of Participants and
Beneficiaries for benefits under the Separate Plan and may also take into
consideration such other relevant non-financial factors as the Trustee deems
appropriate.
(e) The proceeds of any sale, exchange or transfer of shares of American
Common Stock pursuant to the direction of a Participant or Beneficiary in
accordance with this 7.5 shall be allocated to his account in the Separate Plan
in the same manner, in the same proportion and as of the same date as were the
shares sold, exchanged or transferred and shall be governed by the provisions of
this paragraph (e) and, to the extent not inconsistent with this paragraph (e),
all other applicable provisions of this Agreement. Such proceeds shall be deemed
to be held in the American Stock Fund and shall be subject to this paragraph
(e); provided, however, that, to the extent necessary to segregate any return,
loss, gain or income on or from such proceeds (or on or from any reinvestment
thereof) from any return, loss, gain or income on or from the remainder of the
American Stock Fund, the Company or the administrator of the Separate Plan shall
direct the Trustee to segregate such proceeds (and any income or proceeds
therefrom) in one or more identified funds. Any such identified fund shall be
otherwise governed by the other applicable provisions of this Agreement. Any
such proceeds (and any income or proceeds therefrom) shall be invested or
reinvested in the same manner as the assets held in the Short-Term Investment
Fund.
7.6 Exercise of Certain Rights Held in American Stock Fund.
(a) Notwithstanding any other provision of a Separate Plan or this
Agreement to the contrary, the Trustee shall have no discretion or authority to
sell, exercise, exchange or retain any Preferred Share Purchase Rights of the
Company (or any rights issued by the Company in substitution or replacement
therefor) held in the American Stock Fund ("rights") except as provided in this
7.6; provided, however, that the sale, retention or taking of any other action
relating to rights pursuant to any tender offer shall be governed by the
provisions of 7.5 hereof and not by the provisions of this 7.6; and provided,
further, that, in connection with any transfer of shares of American Common
Stock held in the American Stock Fund as provided in this Agreement, the Trustee
may transfer with such shares any rights that are not then transferable
separately from such shares.
(b) Subject to paragraph (d) below, in the event that any rights held in
the American Stock Fund shall become transferable separately from the shares of
American Common Stock held in the American Stock Fund or shall become
exercisable, each Participant or Beneficiary shall be entitled to direct the
Trustee in writing, and the Trustee shall solicit the written direction of such
Participant or Beneficiary, to sell, exercise or exchange the rights which are
attributable to his interest in the American Stock Fund or to retain such rights
in the American Stock Fund, and the Trustee shall sell, exercise, exchange or
retain such rights in accordance with the last-dated timely written direction
received by the Trustee from such Participant or Beneficiary; provided, however,
in the case of a Participant or Beneficiary who directs the exercise of such
rights, the rights shall be exercised only to the extent cash is available in
the Participant's or Beneficiary's account in the American Stock Fund or cash
can be obtained pursuant to paragraph (e) below. With respect to rights as to
which timely written directions have not been received by the Trustee as
provided in the preceding sentence, the Trustee shall in its sole discretion
sell, exercise, exchange or retain such rights. The Trustee shall combine
fractional interests in rights of Participants and Beneficiaries who have given
timely written directions as provided in the first sentence of this paragraph
(b) to the extent possible so that the rights attributable to their interests in
the American Stock Fund are sold, exercised, exchanged or retained in a manner
which reflects as accurately as possible the collective directions given by
them. In giving directions to the Trustee as provided in this paragraph (b),
each Participant or Beneficiary shall be acting as a Named Fiduciary with
respect to the sale, exercise, exchange or retention of rights in accordance
with such directions.
(c) Subject to paragraph (d) below, in the event that any rights shall
become transferable separately from the shares of American Common Stock held in
the American Stock Fund or shall become exercisable, the Trustee shall
communicate or cause to be communicated to all Participants and Beneficiaries
entitled to give directions with respect thereto as provided in this 7.6 the
procedures relating to their right to give directions as Named Fiduciaries to
the Trustee and in particular the consequences of any failure to provide timely
written directions to the Trustee and shall distribute or cause to be
distributed as promptly as possible to such Participants and Beneficiaries all
communications and other materials, if any, that the Trustee may receive from
any person or entity (including the Company, any Subsidiary and any other
subsidiary or affiliated organization of the Company) that are being distributed
to holders of such rights and either are directed generally to such holders or
relate to such rights, and the Company shall promptly furnish to the Trustee all
such communications and other materials, if any, as are being distributed by or
on behalf of the Company, any Subsidiary or any other subsidiary or affiliated
organization of the Company. The Company and the administrator of each Separate
Plan shall provide the Trustee with such information, documents and assistance
as the Trustee may reasonably request in connection with any communications or
distributions to Participants and Beneficiaries as aforesaid. This information
shall include the names and current addresses of Participants and Beneficiaries,
the number of rights credited to the Participant's or Beneficiary's account, and
the amount of cash available in the Participant's or Beneficiary's account in
the American Stock Fund, upon which the Trustee may conclusively rely. Anything
to the contrary in this Agreement or a Separate Plan notwithstanding, except if
the Company or Subsidiary serves as recordkeeper, to the extent necessary to
provide the Company or Subsidiary with information necessary accurately to
maintain records of Participant and Beneficiary account balances, the Trustee
shall use its best efforts to keep confidential the direction (or the absence
thereof) from each Participant or Beneficiary with respect to such rights and
the identity of such Participant or Beneficiary and not to divulge such
direction or identity to any person or entity, including, without limitation,
the Company, any Subsidiary and any other subsidiary or affiliated organization
of the Company and any director, officer, employee or agent thereof, it being
the intent of this 7.6 that the Company, each Subsidiary and each other
subsidiary or affiliated organization of the Company and their directors,
officers, employees and agents not be able to ascertain the direction given (or
not given) by any Participant or Beneficiary with respect to any rights.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of this Agreement with respect to the
sale, exercise, exchange or retention of any rights held in the American Stock
Fund, or cause any such provision or provisions to conflict with ERISA, or
require the Trustee not to act or such rights not to be sold, exercised,
exchanged or retained in accordance with such provision or provisions, then,
upon written notice thereof to the Trustee, in the case of an opinion of counsel
to the Company, or to the Company, in the case of an opinion of counsel to the
Trustee, such provision or provisions shall be given no further force or effect
in such circumstances. Except to the extent otherwise specified in such opinion,
order or decree, the Trustee shall nevertheless have no discretion or authority
in such circumstances to sell, exercise, exchange or retain such rights as to
which written directions were received from Participants and Beneficiaries, but
shall act with respect to such rights in accordance with the last-dated timely
written directions received from Participants and Beneficiaries to the extent
such directions have not been invalidated. To the extent the Trustee exercises
any discretion or fiduciary responsibility it may have in any circumstances with
respect to the sale, exercise, exchange or retention of any rights held in the
American Stock Fund, the Trustee in exercising its fiduciary responsibility,
unless pursuant to the requirements of ERISA or otherwise it is unlawful to do
so, (i) shall take into account directions timely received from Participants and
Beneficiaries as being the most indicative of their best interests with respect
to the sale, exercise, exchange or retention of such rights and (ii) shall take
into consideration, in addition to any relevant financial factors bearing on any
sale, exercise, exchange or retention of such rights, the continuing job
security of Participants as employees of the Company, conditions of employment,
employment opportunities and similar matters and the prospects of Participants
and Beneficiaries for benefits under the Separate Plan and may also take into
consideration such other relevant non-financial factors as the Trustee deems
appropriate.
(e) If practicable and to the extent necessary to exercise rights
attributable to the interest of any Participant or Beneficiary in the American
Stock Fund, the Trustee shall sell such portion of the rights attributable to
such interest as will enable the Trustee to apply the proceeds therefrom to the
exercise of the remaining portion of such rights or the Trustee may obtain cash
in such other manner deemed appropriate by the Trustee provided such other
manner is permitted by applicable law, will not affect the continued qualified
status of the Separate Plan or the tax-exempt status of the Trust under the Code
and will not result in a "prohibited transaction" (as defined in the Code or
ERISA).
(f) The proceeds of any sale, exercise or exchange of rights pursuant to
the direction of a Participant or Beneficiary in accordance with this 7.6 shall
be allocated to his account in a Separate Plan in the same manner, in the same
proportion and as of the same date as were the shares to which the sold,
exercised or exchanged rights were attributable and shall be governed by the
provisions of this paragraph (f) and, to the extent not inconsistent with this
paragraph (f), all other applicable provisions of this Agreement. Such proceeds
shall be deemed to be held in the American Stock Fund and shall be subject to
this paragraph (f); provided, however, that, to the extent necessary to
segregate any return, loss, gain or income on or from such proceeds (or on or
from any reinvestment thereof) from any return, loss, gain or income on or from
the remainder of the American Stock Fund, the Company or the administrator of
the Separate Plan shall direct the Trustee to segregate such proceeds (and any
income or proceeds therefrom) in one or more identified funds. Any such
identified fund shall be otherwise governed by the other applicable provisions
of this Agreement. Any such proceeds (and any income or proceeds therefrom)
shall be invested or reinvested in the same manner as the assets held in the
Short-Term Investment Fund.
7.7 The Trustee shall not be liable for any action taken or not taken in
accordance with any written directions given or deemed to have been given by
Participants or Beneficiaries acting as Named Fiduciaries as provided in the
Separate Plan and this Agreement. The administrator of a Separate Plan shall, as
promptly as possible and from time to time thereafter, certify in writing to the
Trustee the names, addresses and social security numbers of all Participants and
Beneficiaries. Notwithstanding anything to the contrary in this Agreement, (i)
the Trustee shall not be authorized to take any direction or deemed direction
from or on behalf of any person claiming (or who is claimed) to be a Participant
or Beneficiary who has not been certified by the administrator of a Separate
Plan to be such pursuant to the preceding sentence and (ii) the Trustee shall
have no responsibility to communicate with Participants or Beneficiaries at any
addresses other than the most recent addresses certified by the administrator of
a Separate Plan pursuant to the preceding sentence or to locate any Participants
or Beneficiaries whose addresses are not those most recently so certified. The
Trustee shall promptly advise the administrator of the Separate Plan of any
information the Trustee may have that the names, addresses and social security
numbers most recently certified by the administrator of the Separate Plan
pursuant to the next preceding sentence are not current or are otherwise
inaccurate.
ARTICLE EIGHT
ACCOUNTS
The Trustee shall maintain accounts of all receipts and disbursements,
including contributions and distributions and purchases, sales and other
transactions of the Fund. The accounts, and the books and records relating
thereto, shall be open to inspection and audit at all reasonable times by any
person or persons designated by the Company or entitled thereto under ERISA.
Within sixty (60) days after the close of each fiscal year of the Fund and
of any other period agreed upon by the Trustee and the Committee, the Trustee
shall render to the Committee a statement of account for the Fund for the period
commencing with the close of the last preceding period and a list showing each
asset thereof as of the close of the current period and its cost and fair market
value. The Trustee shall rely conclusively upon the determination of the issuing
insurance company with respect to the fair market value of each insurance
contract and upon the determination of the Investment Advisor of each Separate
Account with respect to the fair market value of those assets allocated thereto
which the Trustee deems not to have a readily ascertainable value, and the
Trustee shall have no responsibility with respect thereto.
An account of the Trustee may be approved by the Committee by written
notice delivered to the Trustee or by failure to object to the account by
written notice delivered to the Trustee within six (6) months of the date upon
which the account was delivered to the Committee.
The approval of an account shall constitute a full and complete discharge
to the Trustee as to all matters set forth in that account as if the account had
been settled by a court of competent jurisdiction in an action or proceeding to
which the Trustee, the Company and the Committee were parties. In no event shall
the Trustee be precluded from having the accounts of the Trustee settled by a
judicial proceeding. Nothing in this Article shall relieve the Trustee of any
responsibility, or liability for any responsibility, under ERISA.
ARTICLE NINE
TRUSTEE SUCCESSION
The Trustee may resign at any time by giving written notice to the Company.
The Trustee may be removed by the Company at any time with or without cause by
giving written notice to the Trustee. The resignation or removal shall be
effective sixty (60) days after the date of the Trustee's resignation or receipt
of the notice of removal or at such earlier date as the Trustee and the Company
may agree.
In case of the resignation or removal of the Trustee, the Company shall
appoint a successor trustee by delivery to the Trustee of a written instrument
executed by the Company appointing the successor trustee and a written
instrument executed by the successor Trustee accepting the appointment,
whereupon, the Trustee shall deliver the assets of the Fund to the successor
Trustee but may reserve such reasonable amount as the Trustee may deem necessary
for outstanding and accrued charges against the Fund.
The successor Trustee, and any successor to the trust business of the
Trustee by merger, consolidation or otherwise, shall have all the powers given
the originally named Trustee. No successor Trustee shall be personally liable
for any act or omission of any predecessor. Except as otherwise provided in
ERISA, the receipt of the successor Trustee and the approval of the Trustee's
final account by the Committee in the manner provided in Article EIGHT shall
constitute a full and complete discharge to the Trustee.
ARTICLE TEN
MISCELLANEOUS
Any action required to be taken by the Company shall be by resolution of
the Board of Directors or its Executive Committee or by such one or more of its
officers and agents as shall be designated to act for the Company by such
resolution. Any action required to be taken by any Subsidiary shall be by
resolution of its board of directors or by written direction of such one or more
of its officers and agents as shall be designated by resolution of its board of
directors to act for the Subsidiary. The Trustee may rely upon a certified copy
of a resolution filed with the Trustee and shall have no responsibility for any
action taken by the Trustee in accordance with any such resolution or direction.
The Company shall certify to the Trustee the names of the members of the
Committee acting from time and the identity of each administrator of a Separate
Plan, and the Trustee shall not be charged with knowledge of a change in the
membership of the Committee or the identity of an administrator of a Separate
Plan until so notified by the Company. Any action required to be taken by the
Committee shall be by written direction of such one or more of its Secretary and
members as shall be designated by the Committee to act for the Committee and the
Trustee shall have no responsibility for any action taken by the Trustee in
accordance with any such written direction.
The Trustee may consult with legal counsel, who may also be counsel for the
Company, with respect to its responsibilities under this Agreement and shall be
fully protected in acting or refraining from acting in reliance upon the written
advice of legal counsel.
In no event shall the terms of any Separate Plan, either expressly or by
implication, be deemed to impose upon the Trustee any power or responsibility
other than those set forth in this Agreement or in ERISA. The Trustee may assume
until advised to the contrary that each Separate Plan and the Fund is qualified
under Section 401(a) and exempt from taxation under Section 501(a) of the Code.
The Trustee shall be accountable for contributions made to a Separate Plan and
included among the assets of the Fund but shall have no responsibility to
determine whether the contributions comply with the provisions of the Separate
Plan or of ERISA.
In any judicial proceeding to settle the accounts of the Trustee, the
Company and the Committee shall be the only necessary parties; in any other
judicial proceeding with respect to the Trustee or the Fund, the Trustee, the
Company and each affected Subsidiary shall be the only necessary parties; and no
Participant or Beneficiary shall be entitled to any notice of process. A final
judgment in any such proceeding shall be binding upon the parties to the
proceeding and upon all Participants and Beneficiaries.
The Trustee shall be reimbursed for all reasonable expenses incurred in the
management and protection of the Fund, including reasonable accounting and legal
fees, and shall receive such reasonable compensation for its service as the
Trustee and the Company shall from time to time determine. Those items of
expense and compensation shall be paid from the Fund, subject to prior payment
or reimbursement by the Company or Subsidiary in its discretion.
The Company has allocated fiduciary responsibility among various persons
and entities in accordance with the terms of the Separate Plans and of this
Agreement. The Trustee shall have no responsibility for any error or loss that
may result by reason of the exercise or non-exercise of that fiduciary
responsibility by the person to whom or entity to which it is allocated (other
than those duties allocated to the Trustee), and the Company (which has the
authority to do so under the laws of the State of Delaware) agrees to indemnify
the Trustee from any liability, including reasonable legal fees and expenses,
arising therefrom.
The following provisions shall apply in the event that the Trustee shall be
entitled to indemnification under any provision of this Agreement. The Company
will be entitled to participate in the defense, or, if it so elects, to assume
the defense and to have the defense conducted by counsel chosen by the Company.
If the Company provides the defense, any defense expenses incurred by the
Trustee (including expenses of additional counsel selected by the Trustee),
shall be paid for by the Trustee. In the event the interests of the Company and
the Trustee in any such defense are adverse, the Trustee shall be entitled to
have the defense conducted by counsel selected by it, the identity of whom shall
be subject to the written approval of the Company which shall not be
unreasonably withheld, and the reasonable fees of such counsel shall be paid by
the Company.
No part of the Fund shall be diverted to any purpose other than the
exclusive benefit of the Participants and Beneficiaries or, except as otherwise
permitted under the affected Separate Plan and under ERISA, be remitted to the
Company or a Subsidiary; provided, however, that in the event that the Committee
shall certify that (i) any contribution has been made by a mistake of fact, or
(ii) that a contribution to the Trust has been conditioned on initial
qualification of a Separate Plan under Section 401 or 403(a) of the Code and
that such initial qualification has been denied, or (iii) that a contribution
has been conditioned upon the deductibility thereof under Section 404 of the
Code and that such deduction has been disallowed, and shall direct the return of
any such contribution, the Trustee shall return such contribution (or the value
thereof if less, as determined by the Committee) to the plan sponsor that made
such contribution in accordance with such direction, but in no event shall the
Committee direct a return be made other than prior to the expiration of one year
following the payment thereof in the case of a direction under (i) above, the
denial of initial qualification in the case of a direction under (ii) above, or
the disallowance of the deduction in the case of a direction under (iii) above.
Any person dealing with the Trustee shall not see to the application of any
money paid or property delivered to the Trustee or inquire into the provisions
of this Agreement or of any Separate Plan or the Trustee's authority thereunder
or compliance therewith, and may rely upon the statement of the Trustee that the
Trustee is acting in accordance with this Agreement.
Except as otherwise directed by the administrator of a Separate Plan, which
direction shall be in compliance with all applicable provisions of the 1984
Retirement Equity Act, the relevant Separate Plan and Section 401(a)(13) of the
Code, any interest of a Participant or Beneficiary in the Fund or in any
Separate Plan or in any distribution therefrom shall not be subject to the
claims of any creditor, any spouse for alimony or support, or others, or to
legal process, and may not be voluntarily or involuntarily alienated or
encumbered.
Loans to Participants as provided for in a Separate Plan shall be granted
and administered by the administrator of the Separate Plan. The Trustee shall
distribute cash to such Participants who are granted loans in such amount and at
such times as the administrator of the Separate Plan shall from time to time
direct in writing. Loan payments collected by the administrator of a Separate
Plan shall be forwarded to the Trustee. The amount of such loans shall be
carried by the Trustee as an asset of the Trust equal to the combined unpaid
principal balance of all Participants. The Trustee shall have no responsibility
to ascertain whether a loan complies with the provisions of a Separate Plan, for
the decision to grant a loan or for the collection and repayment of a loan.
ARTICLE ELEVEN
GOVERNING LAW
The provisions of ERISA and the law of the State of Illinois shall govern
the validity, interpretation and enforcement of this Agreement, and in case of
conflict, the provisions of ERISA shall prevail. The invalidity of any part of
this Agreement shall not affect the remaining parts hereof.
ARTICLE TWELVE
AMENDMENT AND TERMINATION
The Company may at any time or times with the consent of the Trustee amend
this Agreement in whole or in part by written instrument delivered to the
Trustee and effective upon the date therein provided.
This Agreement shall terminate with respect to a Separate Plan by action of
the Company or Subsidiary responsible for making contributions to the Plan
Account, by the Separate Plan's loss of its qualified status under Section
401(a) of the Code, by the Company's sale or dissolution of the Subsidiary
responsible for making contributions to the Plan Account, or by the failure of a
corporate successor to the Company to elect to become a party to this Agreement
as provided in Section 1.6 of this Agreement. Upon termination with respect to a
Separate Plan, the Trustee shall distribute the Plan Account in the manner
directed by the administrator of the Separate Plan, in kind to the extent of
identified assets and the balance in cash or in kind or partly in each as the
Trustee and the administrator of the Separate Plan shall agree, except that the
Trustee shall be entitled to prior receipt of such rulings and determinations
from such administrative agencies as it may deem necessary or advisable to
assure itself that the distribution directed is in accordance with law and will
not subject the Fund or the Trustee to liability, and except, further, that the
Trustee may reserve such reasonable amount as the Trustee may deem necessary for
outstanding and accrued charges against the Plan Account.
This Agreement shall terminate in its entirety when there is no asset
included in the Fund.
IN WITNESS WHEREOF the Company and the Trustee have executed this Agreement
by their respective duly authorized officers and have caused their respective
corporate seals to be affixed hereto the day and year first above written.
ATTEST: AMERICAN BRANDS, INC.
Louis F. Fernous, Jr. A. Henson
- ------------------------------ By--------------------
Secretary
(CORPORATE SEAL)
ATTEST: THE NORTHERN TRUST COMPANY
M. Short Mary T. Dillon
- ------------------------------ By------------------------
Assistant Secretary Vice President
(CORPORATE SEAL)
<PAGE>
STATE OF CONNECTICUT )
: ss.: Old Greenwich
COUNTY OF FAIRFIELD )
On the 30th day of September, 1991, before me personally came Arnold
Henson to me known who being by me duly sworn, did depose and say that he
resides at 67 Stag Lane, Greenwich, Connecticut, that he is the Executive
Vice President and Chief Financial Officer of AMERICAN BRANDS, INC., the
corporation described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name
thereto by like order.
Christine P. Burns
-----------------------------------
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
On the 4th day of December, 1991, before me personally came Mary T.
Dillon to me known who being by me duly sworn, did depose and say that
she resides at 50 S. LaSalle, Chicago, IL, that she is the Vice President
of THE NORTHERN TRUST COMPANY, the banking institution described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
Vita Rose Lau
-----------------------------------
<PAGE>
SCHEDULE A
----------
1. Profit-Sharing Plan of American Brands, Inc.
2. Profit-Sharing Plan of Jim Beam Brands Co.
3. Aristokraft, Inc. Employee Savings Plan.
4. Day-Timers, Inc. Employee Savings Plan.
5. Master Lock Company Savings Plan for Salaried Employees.
6. Moen Incorporated Savings Plus Plan.
7. Twentieth Century Companies, Inc. Employee Savings Plan.
8. Waterloo Industries, Inc. Employee Savings Plan.
EXHIBIT 99b2
FIRST AMENDMENT TO
AMERICAN BRANDS, INC.
MASTER DEFINED CONTRIBUTION PLAN TRUST AGREEMENT
THIS AMENDMENT, made as of the first day of January, 1992, by and between
AMERICAN BRANDS, INC., a corporation organized under the laws of the State of
Delaware (the "Company") and THE NORTHERN TRUST COMPANY, an Illinois corporation
of Chicago, Illinois (the "Trustee") to the Trust Agreement made as of the first
day of January, 1992 (the "Trust Agreement") establishing the AMERICAN BRANDS,
INC. MASTER DEFINED CONTRIBUTION PLAN TRUST (the "TRUST").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore established the Trust
for the purpose of the collective investment of assets of defined contribution
employee pension benefit plans adopted by the Company and certain of the
Company's subsidiaries for the benefit of certain employees thereof; and
WHEREAS, the Company has reserved to its Trusts Investment Committee (the
"Committee") the right to vote all proxies with respect to all securities held
in the Trust, except for proxies with respect to Common Stock of the Company
held in the American Stock Fund; and
WHEREAS, the Company desires to amend the Trust Agreement to reflect that
the Committee has the exclusive right to vote all proxies with respect to all
securities held in the Trust, except for proxies with respect to Common Stock of
the Company held in the American Stock fund;
NOW, THEREFORE, the Company and the Trustee do hereby declare and agree
with each other that the Trust Agreement be and it is hereby amended, effective
as of January 1, 1992, as follows:
1. Section 6.7 is hereby amended in its entirety as follows:
"6.7 To exercise or sell any subscription or conversion rights; to
consent to and join in or oppose any voting trusts, reorganizations,
consolidations, mergers, foreclosures and liquidations and in connection
therewith to deposit securities and accept and hold other property received
therefore; provided, however, that the Committee shall have the sole
authority to exercise the right to vote proxies with respect to any
corporate securities held in the Fund, except for proxies with respect to
American Common Stock held in the American Stock Fund."
2. Section 7.3 is hereby amended in its entirety as follows:
"7.3 The Trustee shall not make any investment review of, consider the
propriety of holding or selling, or vote other than as provided in 6.7, any
assets of the Fund allocated to a Separate Account in accordance with
Article FOUR, except that the limitation imposed upon the Trustee by this
paragraph shall not apply to any assets of the Fund loaned by the Trustee
pursuant to 4.6, and except, further, that if the Trustee shall not have
received contrary instructions from the Investment Advisor of a Separate
Account the Trustee shall invest for short-term purposes any cash of that
Separate Account in its custody in bonds, notes and other evidences of
indebtedness having a maturity date not beyond five years from the date of
purchase, United States Treasury Bills, commercial paper, banker's
acceptances and certificates of deposit, undivided interests or
participations therein and (if subject to withdrawal on a daily or weekly
basis) participations in common or collective funds composed thereof and
regulated investment companies."
3. Section 7.8 is hereby added as follows:
"7.8 The Committee shall have the sole authority to exercise the right
to vote all proxies with respect to all securities held in the Fund, except
for proxies with respect to American Common Stock held in the American
Fund."
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first above written.
ATTEST: AMERICAN BRANDS, INC.
Louis F. Fernous, Jr. By A. Henson
- --------------------- ------------------------
Secretary
(CORPORATE SEAL)
ATTEST: THE NORTHERN TRUST COMPANY
M. Short By Mary T. Dillon
- --------------------- ------------------------
Assistant Secretary Vice President
(CORPORATE SEAL)
<PAGE>
STATE OF CONNECTICUT )
: ss.: Old Greenwich
COUNTY OF FAIRFIELD )
On the 1st day of November, 1991, before me personally came Arnold Henson
to me known who being by me duly sworn, did depose and say that he resides at 67
Stag Lane, Greenwich, CT, that he is the Executive Vice President and Chief
Financial Officer of AMERICAN BRANDS, INC., the corporation described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation,
and that he signed his name thereto by like order.
Mark S. Lyon
---------------------
Notary Public
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
On the 4th day of December, 1991, before me personally came Mary T. Dillon
to me known who being by me duly sworn, did depose and say that she resides at
50 S. LaSalle - Chicago IL, that she is the Vice President of THE NORTHERN TRUST
COMPANY, the banking institution described in and which executed the foregoing
instrument; that she knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that she signed her name thereto
by like order.
Vita Rose Lau
---------------------
Notary Public
SECOND AMENDMENT TO
AMERICAN BRANDS, INC.
MASTER DEFINED CONTRIBUTION PLAN TRUST AGREEMENT
THIS AMENDMENT, made as of the first day of March, 1993, by and between
AMERICAN BRANDS, INC., a corporation organized under the laws of the State of
Delaware (the "Company") and THE NORTHERN TRUST COMPANY, an Illinois corporation
of Chicago, Illinois (the "Trustee") to the Trust Agreement made as of the first
day of January, 1992 (the "Trust Agreement") establishing the AMERICAN BRANDS,
INC. MASTER DEFINED CONTRIBUTION PLAN TRUST (the "Trust")
W I T N E S S E T H :
WHEREAS, the Company and the Trustee have heretofore established the Trust
for the purpose of the collective investment of assets of defined contribution
employee pension benefit plans adopted by the Company and certain of the
Company's subsidiaries for the benefit of certain employees thereof; and
WHEREAS, the Company desires to amend the Trust Agreement to permit (i)
instructions to be given to the Trustee by electronic transmission as well as in
writing and (ii) the administrators of each Separate Plan to direct the Trustee
regarding disbursements from the Frozen GIC Fund;
NOW, THEREFORE, the Company and the Trustee do hereby declare and agree
with each other that the Trust Agreement be and it is hereby amended, effective
as of March 1, 1993, as follows:
1. Article III is hereby amended by changing the first paragraph thereof in
its entirety as follows:
"The Trustee shall make distributions from the Fund in cash or
in kind to such persons, in such amounts, at such times and in such
manner as the administrator of each Separate Plan shall from time to
time direct in writing or by electronic transmission, or the
administrator of a Separate Plan may, after written notice to the
Trustee of its assumption of the responsibility, make the distributions
from the Fund through a commercial banking account held in the name of
this Trust in a federally insured banking institution (including the
Trustee) which is used exclusively for that purpose and to which the
Trustee shall make such deposits from the Fund as the administrator of
the Separate Plan may from time to time direct in writing or by
electronic transmission, except that the Trustee may reserve such
reasonable amount as the Trustee shall deem necessary to pay any income
or death taxes attributable to a distribution or may require such
release from a taxing authority or such indemnification from the
distributee as the Trustee shall deem necessary for the protection of
the Trustee. The Trustee shall have no responsibility to ascertain
whether any direction received by the Trustee from the administrator of
a Separate Plan in accordance with the preceding sentence is proper and
in compliance with the terms of the Separate Plan or to see to the
application of any distribution or, with respect to deposits made to a
commercial banking account, to account for funds retained therein or
disbursed by the administrator of the Separate Plan or to prepare any
informational returns for tax purposes as to distributions made
therefrom."
2. Section 5.6 is hereby amended in its entirety as follows:
"5.6 Frozen GIC Fund. The Frozen GIC Fund shall comprise such
guaranteed interest contracts with insurance carriers which have been
transferred from the predecessor trustees. No new contributions or
transfers to the Frozen GIC Fund may be made by a Separate Plan. The
Trustee shall have no investment responsibility for such contracts. The
Trustee shall make distributions from the Frozen GIC Fund at such times
and in such manner as the administrator of a Separate Plan may direct
in accordance with Article III. Upon maturity of a guaranteed interest
contract held in the Frozen GIC Fund, the administrator of the Separate
Plan to which such contract is attributable shall direct the Trustee to
transfer the proceeds thereof to another Fund. The Trustee shall act in
all other respects regarding such guaranteed interest contracts only as
directed by the Committee. In the absence of directions from the
administrator of a Separate Plan or the Committee, the Trustee shall
have no power, duty or authority to invest the Frozen GIC Fund or to
take any action with respect to any guaranteed interest contracts in
the Frozen GIC Fund."
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first above written.
ATTEST: AMERICAN BRANDS, INC.
Louis F. Fernous, Jr. By Gilbert L. Klemann, II
- ---------------------- ------------------------
Secretary Senior Vice President
and General Counsel
(CORPORATE SEAL)
ATTEST: THE NORTHERN TRUST COMPANY
Fiona M. White By Susan M. Spalding
- ---------------------- -----------------------
Assistant Secretary Vice President
(CORPORATE SEAL)
<PAGE>
STATE OF CONNECTICUT )
: ss.: Old Greenwich 4/19/95
COUNTY OF FAIRFIELD )
On the 19th day of April, 1995, before me personally came Gilbert L.
Klemann, II to me known who being by me duly sworn, did depose and say that he
resides at 25 Hope Farm Road, Greenwich, CT 06830, that he is the Sr. Vice
President and General Counsel of AMERICAN BRANDS, INC., the corporation
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
Gail D. Morgan
----------------------
Notary Public
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
On the 24 day of April, 1995, before me personally came Susan M. Spalding
to me known who being by me duly sworn, did depose and say that he resides at ,
that he is the Vice President of THE NORTHERN TRUST COMPANY, the banking
institution described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation, and that he signed his name thereto by like order.
Julia A. Adams
----------------------
Notary Public
