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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Defined Contribution Plan of
American Brands, Inc.
and Participating Operating Companies
(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*......1,300,000 shs. $41.375 $53,787,500 $18,548
* 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>
EXPLANATORY NOTE
Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in accordance with
the Note to Part I of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant or the Plan 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);
(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;
(v) the Annual Report on Form 11-K of the Profit-Sharing Plan of
American Brands, Inc. (a predecessor plan of the Plan) for the fiscal year
ended December 31, 1994, filed pursuant to Section 15(d) of the Exchange
Act.;
(vi) Registrant's Registration Statement on Form S-4 (Registration No.
33-635), as amended by Post-Effective Amendment No. 2 on Form S-8; and
(vii) Registrant's Registration Statement on Form S-8 (Registration
No. 33-13363).
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.
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.
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 - Defined Contribution Plan of American Brands, Inc. and Participating
Operating Companies, effective as of January 1, 1996.
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.
<PAGE>
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 Old Greenwich, State of
Connecticut, on this 8th day of November, 1995.
DEFINED CONTRIBUTION PLAN OF
AMERICAN BRANDS, INC. AND
PARTICIPATING OPERATING COMPANIES
By STEVEN C. MENDENHALL
(Steven C. Mendenhall, Chairman,
Corporate Employee Benefits Committee)
*By:
(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 - Defined Contribution Plan of American Brands, Inc.
and Participating Operating Companies, effective as
of January 1, 1996.
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 Defined Contribution Plan of American Brands, Inc. and
Participating Operating Companies. 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;
(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; and
(3) our report dated June 15, 1995 accompanying the financial statements of
the Profit-Sharing Plan of American Brands, Inc. as of December 31, 1994 and
1993 and for the years then ended, and the Schedule of Assets Held for
Investment Purposes as of December 31, 1994, included in the Annual Report on
Form 11-K of the Profit-Sharing Plan 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 Defined Contribution Plan of American Brands, Inc. and
Participating Operating Companies and (b) any and all amendments and supplements
thereto:
Signature Title Date
Steven C. Mendenhall
---------------------- Chairman, Corporate October 24, 1995
Steven C. Mendenhall Employee Benefits
Committee
DEFINED CONTRIBUTION PLAN
OF
AMERICAN BRANDS, INC. AND PARTICIPATING OPERATING COMPANIES
(Effective as of January 1, 1996)
<PAGE>
TABLE OF CONTENTS
Page
INTRODUCTION ........................................................
ARTICLE I. DEFINITIONS.............................................
ARTICLE II. ELIGIBILITY AND PARTICIPATION...........................
2.01. Eligibility.............................................
2.02. Transfers From Non-Participating Employers..............
2.03. Reemployment............................................
2.04. Transitional Provision for Employees
of Acushnet Participating Employers.....................
ARTICLE III. PROFIT-SHARING CONTRIBUTIONS............................
3.01. Profit-Sharing Contributions of American................
3.02. Profit-Sharing Contributions of ACCO
Participating Employers.................................
3.03. Profit-Sharing Contributions of Beam
Participating Employers.................................
3.04. Profit-Sharing Contributions of Day-
Timers Participating Employers..........................
3.05. Reduction of Profit-Sharing Contributions...............
3.06. Cash or Property........................................
3.07. Source..................................................
3.08. Irrevocability..........................................
ARTICLE IV. 401(k) SAVINGS CONTRIBUTIONS............................
4.01. Tax Deferred Contributions..............................
4.02. Company Matching Contributions..........................
4.03. Rollover Contributions..................................
4.04. Limitation on Annual Amount of Tax
Deferred Contributions..................................
4.05. Actual Deferral Percentage Tests........................
4.06. Actual Contribution Percentage Tests....................
4.07. Alternate Percentage Test...............................
4.08. Special Company Contributions...........................
4.09. MasterBrand Cash Advance................................
ARTICLE V. INVESTMENT PROVISIONS...................................
5.01. Investment Funds........................................
5.02. Investment Fund Elections...............................
5.03. Administration of American Stock Fund...................
5.04. Investment of S&P 500 Index Fund........................
5.05. Investment of Value Equity Fund.........................
5.06. Investment of Large-Cap Growth Equity Fund..............
5.07. Investment of Small-Cap Growth Equity Fund..............
5.08. Investment of International Equity Fund.................
5.09. Investment of Growth-Oriented Diversified Fund..........
5.10. Investment of Value-Oriented Diversified Fund...........
5.11. Investment of Government Securities Fund................
5.12. Investment of Corporate/Government Bond Fund............
5.13. Investment of Short-Term Investment Fund................
5.14. Investment of Frozen Fixed Fund.........................
5.15. Voting of Shares in American Stock Fund.................
5.16. Tendering of Shares in American Stock Fund..............
5.17. Exercise of Certain Rights Held in
American Stock Fund.....................................
5.18. Valuation of Investment Funds...........................
ARTICLE VI. ACCOUNTS................................................
6.01. Participants' Accounts..................................
6.02. Allocation of Earnings and Losses to Accounts...........
6.03. Allocation of Contributions
to Accounts.............................................
6.04 Annual Additions Limitation.............................
6.05 Combined Maximum Limitations............................
6.06 Definition of Compensation for
Purposes of Sections 6.04 and 6.05......................
6.07 Limitation of Annual Unadjusted
Earnings or Compensation................................
ARTICLE VII. VESTING AND FORFEITURES.................................
7.01. Participant Contributions...............................
7.02. Employer Contributions..................................
7.03. Vesting in Prior Plan...................................
7.04. Amendments to Vesting Schedule..........................
7.05. Forfeitures.............................................
7.06. Reinstatement of Account Balances.......................
ARTICLE VIII. DISTRIBUTIONS...........................................
8.01. Form of Payment.........................................
8.02. Time of Payment.........................................
8.03. Payment of Kensington Money Purchase Account Balances...
8.04. Certain Retroactive Payments............................
8.05. Designation of Beneficiary..............................
8.06. Payment in Event of Legal Disability....................
8.07. Missing Distributees....................................
8.08. Information Required of Distributees....................
8.09. Direct Rollover Provision...............................
ARTICLE IX. IN-SERVICE WITHDRAWALS..................................
9.01. Hardship Withdrawals....................................
9.02. Withdrawals Upon Attainment of Age 59-1/2...............
9.03. Withdrawal Provisions for Certain
Accounts From Profit-Sharing Plan
of American Brands, Inc.................................
9.04. Withdrawal Provisions for Certain
Accounts From ACCO World
Corporation Profit-Sharing Plan.........................
9.05. Withdrawal Provisions for Certain
Accounts From Acushnet Company
Employee Savings Plan...................................
9.06. Withdrawal Provisions for Profit-
Sharing Accounts From Day-Timers,
Inc. Profit-Sharing and Employee Savings Plan...........
9.07. Withdrawal Provisions for Certain
Accounts From Profit-Sharing and
401(k) Savings Plan of Jim Beam Brands Co...............
9.08. Withdrawal Provisions for Certain
Account Balances From MasterBrand
Industries, Inc. Employee Savings Plan..................
9.09. Limitation on Withdrawals...............................
ARTICLE X. LOANS...................................................
10.01. Availability............................................
10.02. Effect on Account Balances and Investment Funds.........
10.03. Amount..................................................
10.04. Term of Loan............................................
10.05. Promissory Note.........................................
10.06. Repayment...............................................
10.07. Reduction of Account Balance............................
ARTICLE XI. ADMINISTRATION OF PLAN..................................
11.01. Fiduciaries.............................................
11.02. Corporate Employee Benefits Committee...................
11.03. Organization of Committee...............................
11.04. Action by Committee.....................................
11.05. Disqualification of Committee Members...................
11.06. Committee Rules; Conclusiveness of Determinations.......
11.07. Committee Powers and Duties.............................
11.08. Reports.................................................
11.09. Claims Procedure........................................
11.10. Data Concerning Participants............................
11.11. Certification of Data...................................
11.12. Indemnity of Board of Directors and Committee Members...
11.13. Indemnity for Acts of Investment Managers...............
11.14. Non-Discriminatory Action...............................
11.15. Plan Expenses...........................................
ARTICLE XII. MANAGEMENT OF TRUSTS....................................
12.01. Funds in Trusts.........................................
12.02. Trustee and Trust Agreement.............................
12.03. Investment Managers.....................................
12.04. Conclusiveness of Reports...............................
ARTICLE XIII. AMENDMENT AND TERMINATION...............................
13.01. Reserved Powers.........................................
13.02. Plan Termination........................................
13.03. Plan Merger.............................................
13.04. Successor Employer......................................
ARTICLE XIV. MISCELLANEOUS...........................................
14.01. Non-Alienation of Benefits..............................
14.02. Action by Participating Employers.......................
14.03. Exclusive Benefit.......................................
14.04. Gender and Number.......................................
14.05. Right to Discharge......................................
14.06. Absence of Guaranty.....................................
14.07. Headings................................................
14.08. Governing Law...........................................
ARTICLE XV. TOP-HEAVY RULES.........................................
15.01. Top-Heavy Determination.................................
15.02. Minimum Vesting.........................................
15.03. Minimum Contributions...................................
15.04. Special Annual Additions Limitation.....................
15.05. Provisions Applicable if Plan Ceases to be Top-Heavy....
<PAGE>
DEFINED CONTRIBUTION PLAN
OF
AMERICAN BRANDS, INC. AND PARTICIPATING OPERATING COMPANIES
The Defined Contribution Plan of American Brands, Inc. and
Participating Operating Companies (the "Plan") is hereby established effective
as of January 1, 1996 (the "Effective Date"). This Plan reflects the merger and
restatement of the Profit-Sharing Plan of American Brands, Inc., the ACCO World
Corporation Profit-Sharing Plan, the Acushnet Company Employee Savings Plan, the
Day-Timers, Inc. Profit-Sharing and Employee Savings Plan, the Jim Beam Brands
Co. Profit-Sharing and 401(k) Savings Plan and the MasterBrand Industries, Inc.
Employee Savings Plan and constitutes a continuation of each such plan (each
hereinafter referred to as a "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) "ACCO" means ACCO World Corporation, a Delaware corporation,
its successors and assigns.
(b) "ACCO After-Tax Account" means any one of the accounts so
designated and provided for in Section 6.01(i).
(c) "ACCO Participating Employer" means ACCO, ACCO USA, Inc.,
Polyblend Corporation, Vogel Peterson Furniture Company, Perma Products Company
and Kensington Microware Limited and any other Related Employer that is a direct
or indirect subsidiary of ACCO and which, with the approval of the board of
directors of ACCO, shall adopt this Plan for the benefit of its employees,
according to a resolution of the board of directors or equivalent authority of
such Related Employer, considered severally.
(d) "ACCO Rollover Account" means any one of the accounts so
designated and provided for in Section 6.01(k).
(e) "Account(s)" means the Profit-Sharing Account, Cash Option
Account, Tax Deferred Account, Company Matching Account, Rollover Account,
Withdrawal Account, Deposit Account, Post-Tax Transfer Contribution Account,
ACCO After-Tax Account, Kensington Money Purchase Account, ACCO Rollover
Account, Acushnet Company Contribution Account, Acushnet Employee Savings
Account, Acushnet Rollover Contribution Account, Transferred General Mills Plan
Account, Acushnet Tax Deductible Account and Supplemental Contribution Account
so designated and provided for in Section 6.01.
(f) "Account Balance(s)" means, for each Participant, former
Participant or Beneficiary, the total balance standing to his Account or
Accounts on the date of reference determined in accordance with valuation
procedures described in Article VI.
(g) "Acushnet" means Acushnet Company, a Delaware corporation, its
successors and assigns.
(h) "Acushnet Company Contribution Account" means any one of the
accounts so designated and provided for in Section 6.01(l).
(i) "Acushnet Employee Savings Account" means any one of the
accounts so designated and provided for in Section 6.01(m).
(j) "Acushnet Participating Employer" means Acushnet, and any
other Related Employer that is a direct or indirect subsidiary of Acushnet and
which, with the approval of the board of directors of Acushnet, shall adopt this
Plan for the benefit of its employees, according to a resolution of the board of
directors or equivalent authority of such Related Employer, considered
severally.
(k) "Acushnet Rollover Contribution Account" means any one of the
accounts so designated and provided for in Section 6.01(n).
(l) "Acushnet Tax Deductible Account" means any one of the
accounts so designated and provided for in Section 6.01(p).
(m) "Alternate Payee" means any spouse, former spouse, child or
other dependent of a Participant who is recognized by a Qualified Domestic
Relations Order as having a right to receive all or a portion of a Participant's
benefits payable under the Plan.
(n) "American" means American Brands, Inc., a Delaware
corporation, its successors and assigns.
(o) "American Common Stock" means the common stock of American as
now constituted and any other common stock into which it may be reclassified.
(p) "American Stock Fund" means the portion of the Trust Fund so
designated and provided for in Section 5.01.
(q) "Annual Valuation Date" means the close of business on the
last business day of December in each Plan Year.
(r) "Approved Leave of Absence" means an absence from work
approved by the Participating Employer under uniform rules and conditions for
all Employees of such Participating Employer. In all events an Approved Leave of
Absence by reason of service in the armed forces of the United States shall end
no later than the time at which a Participant's reemployment rights as a member
of the armed forces cease to be protected by law.
(s) "Beam" means Jim Beam Brands Co., a Delaware corporation, its
successors and assigns.
(t) "Beam Participating Employer" means Beam and any other Related
Employer that is a direct or indirect subsidiary of Beam and which, with the
approval of the board of directors of Beam, shall adopt this Plan for the
benefit of its employees, according to a resolution of the board of directors or
equivalent authority of such Related Employer, considered severally.
(u) "Beneficiary" means the person or persons designated by a
Participant, former Participant or Beneficiary to receive any benefits under the
Plan which may be due upon the Participant's, former Participant's or
Beneficiary's death.
(v) "Board of Directors" means the Board of Directors of American.
(w) "Cash Option Account" means any one of the accounts so
designated and provided for in Section 6.01(b).
(x) "Cash Option Contributions" means the portion of the
Profit-Sharing Contributions made by an ACCO Participating Employer otherwise
allocable to a Participant's Cash Option Account for a Plan Year that a
Participant can elect to receive in cash pursuant to Section 3.02(e), but which
the Participant does not elect to receive in cash. (y) "Code" means the Internal
Revenue Code of 1986, as amended from time to time.
(z) "Committee" means the Corporate Employee Benefits Committee
provided for in Article XI.
(aa) "Company Matching Account" means any one of the accounts so
designated and provided for in Section 6.01(d).
(bb) "Company Matching Contributions" means any contributions made
to the Company Matching Account of a Participant by a Participating Employer as
provided for in Section 4.02.
(cc) "Corporate/Government Bond Fund" means the portion of the
Trust Fund so designated and provided for in Section 4.01.
(dd) "Date of Employment" means the first day an Employee performs
an Hour of Service.
(ee) "Day-Timers" means Day-Timers, Inc., a Delaware corporation,
its successors and assigns.
(ff) "Day-Timers Participating Employer" means Day-Timers,
Day-Timer Concepts, Inc. and any other Related Employer that is a direct or
indirect subsidiary of Day-Timers and which, with the approval of the board of
directors of Day-Timers, shall adopt this Plan for the benefit of its employees,
according to a resolution of the board of directors or equivalent authority of
such Related Employer, considered severally.
(gg) "Deposit Account" means any one of the accounts so designated
and provided for in Section 6.01(g).
(hh) "Disability" means a physical or mental condition of a
Participant which renders him permanently incapable of continuing any employment
for wage or profit and for which such Participant receives Social Security
disability benefits. Proof of receipt by the Participating Employer of Social
Security disability benefits shall be required.
(ii) "Domestic Relations Order" means any judgment, decree or
order (including approval of a property settlement agreement) that relates to
the provision of child support, alimony payments or marital property rights to
an Alternate Payee and is made pursuant to a state domestic relations law,
including a community property law.
(jj) "Effective Date" means January 1, 1996.
(kk) "Employee" means any person employed by a Participating
Employer on a salaried, hourly paid or commission basis, excluding any
independent contractor or person covered under a collective bargaining agreement
unless the collective bargaining agreement provides for coverage under the Plan;
provided that with respect to persons employed by a MasterBrand Participating
Employer, employee means any person employed in (1) an executive or managerial
position, (2) an office in a technical, professional, administrative or clerical
position or (3) a sales position and who is receiving remuneration for personal
services rendered to a MasterBrand Participating Employer.
(ll) "Entry Date" means the first day of any calendar month.
(mm) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
(nn) "Fair Market Value" on any date means the value reported by
the Trustee as being the fair market value at such date as determined by it
according to its usual methods and procedures.
(oo) "Fiduciaries" means American, each other Participating
Employer, the Board of Directors and the board of directors of each other
Participating Employer, the Executive Committee of the Board of Directors, the
Committee, the Trusts Investment Committee and the Trustee, but only with
respect to the specific responsibilities of each as described in Articles XI and
XII. 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
Section 5.17(a)) as provided in Section 5.15 or 5.16 or with respect to the
sale, exercise or retention of any such rights held in the American Stock Fund
as provided in Section 5.17.
(pp) "Forfeiture" means the portion of a Participant's Account
Balances to which he is not entitled at the termination of his employment as
determined in Section 7.05.
(qq) "Frozen Fixed Fund" means the portion of the Trust Fund so
designated and provided for in Section 5.01.
(rr) "Government Securities Fund" means the portion of the Trust
Fund so designated and provided for in Section 5.01.
(ss) "Growth-Oriented Diversified Fund" means the portion of the
Trust Fund so designated and provided for in Section 5.01.
(tt) "Highly Compensated Employee" means for a Plan Year any
employee who, during such Plan Year or the immediately preceding Plan Year:
(1) Was at any time a five percent (5%) owner of any Related
Employer (within the meaning of Section 416(i)(1) of the Code);
(2) Received compensation from any Related Employer in excess of
seventy-five thousand dollars ($75,000) (or such other amount as
determined under Section 415(d) of the Code);
(3) Received compensation from any Related Employer in excess
of fifty thousand dollars ($50,000) (or such other amount as determined
under Section 415(d) of the Code) and was in the top twenty percent
(20%) of the group of employees determined under Section 414(q)(8) of
the Code when ranked on the basis of compensation in such Plan Year; or
(4) Was at any time an officer of any Related Employer and
received compensation from any Related Employer in excess of fifty
percent (50%) of the amount in effect under Section 415(b)(1)(A) of the
Code for such Plan Year.
In the event that no officer of the Related Employer received compensation from
the Related Employer in excess of fifty percent (50%) of the amount in effect
under Section 415(b)(1)(A) of the Code for such Plan Year, the highest paid
officer shall be treated as a Highly Compensated Employee. Further, no more than
fifty (50) Employees or ten percent (10%) of the employees shall be treated as
officers for purposes of determining a Highly Compensated Employee.
In the case of the Plan Year for which the determination is made, an employee
not described in (2), (3) or (4) above for the preceding year (without regard to
this sentence) shall not be treated as described in (2), (3) or (4) above unless
such employee is a member of the group consisting of the one hundred (100)
employees paid the greatest compensation during the Plan Year for which the
determination is being made.
For purposes of Article IV, if any individual is the spouse, lineal ascendant,
lineal descendant or spouse of a lineal ascendant or descendant of a five
percent (5%) owner or a Highly Compensated Employee in the group consisting of
the ten (10) Highly Compensated Employees paid the greatest compensation during
the year, then such individual shall not be treated as a separate employee, and
any compensation paid to such individual (and any Tax Deferred Contributions and
Cash Option Contributions on behalf of such individual) shall be treated as if
paid to (or on behalf of) the five percent (5%) owner or Highly Compensated
Employee.
A former employee who had a separation year prior to the Plan Year for which the
determination is made who was a Highly Compensated Employee for either such
former Employee's final year of employment or any determination year ending on
or after the employee's fifty-fifth (55th) birthday shall be included as a
Highly Compensated Employee.
(uu) "Hour of Service" means:
(1) Each hour for which an Employee is paid or entitled to
payment for the performance of duties for a Participating Employer or
Non-Participating Employer. These hours shall be credited to the
Employee for the computation period or periods in which the duties are
performed;
(2) Each hour for which an Employee is paid or entitled to
payment by a Participating Employer or Non-Participating Employer on
account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated)
due to vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence. No more than five
hundred one (501) Hours of Service shall be credited under this
paragraph for any single continuous period (whether or not such period
occurs in a single computation period). Hours under this paragraph
shall be calculated and credited pursuant to Section 2530.200b-2 of the
Department of Labor Regulations, which are incorporated herein by
reference; and
(3) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by a Participating Employer
or Non-Participating Employer. The same Hours of Service shall not be
credited under both paragraph (1) or paragraph (2), as the case may be,
and under this paragraph (3). These hours shall be credited to the
computation period or periods to which the award or agreement pertains
rather than the computation period in which the award, agreement or
payment is made.
(vv) "International Equity Fund" means the portion of the Trust
Fund so designated and provided for in Section 5.01.
(ww) "Investment Fund(s)" means the American Stock Fund, S&P 500
Index Fund, Value Equity Fund, Large-Cap Growth Equity Fund, Small-Cap Growth
Equity Fund, International Equity Fund, Growth-Oriented Diversified Fund,
Value-Oriented Diversified Fund, Government Securities Fund,
Corporate/Government Bond Fund, Short-Term Investment Fund, Frozen Fixed Fund
and Loan Fund held under the Trust Fund as designated pursuant to Section 5.01.
(xx) "Investment Manager" means one or more investment counsel
appointed as provided in Section 12.03.
(yy) "Kensington Money Purchase Account" means any of the accounts
so designated and provided for in Section 6.01(j).
(zz) "Large-Cap Growth Equity Fund" means the portion of the Trust
Fund so designated and provided for in Section 5.01.
(aaa) "Loan Fund" means the portion of the Trust Fund so
designated and provided for in Section 5.01.
(bbb) "MasterBrand" means MasterBrand Industries, Inc., a Delaware
corporation, its successors and assigns.
(ccc) "MasterBrand Participating Employer" means MasterBrand,
Aristokraft, Inc., Master Lock Company, Moen Incorporated and Waterloo
Industries, Inc. and any other Related Employer that is a direct or indirect
subsidiary of MasterBrand and which, with the approval of the board of directors
of MasterBrand, shall adopt this Plan for the benefit of its employees,
according to a resolution of the board of directors or equivalent authority of
such Related Employer, considered severally.
(ddd) "Non-Participating Employer" means any Related Employer
which is not a Participating Employer.
(eee) "Normal Retirement Age" means age sixty-five (65).
(fff) "Participant" means an Employee who meets the requirements
of participation in the Plan as provided in Article II and who continues to
qualify for participation.
(ggg) "Participating Employer" means American and each ACCO
Participating Employer, Acushnet Participating Employer, Beam Participating
Employer, Day-Timers Participating Employer and MasterBrand Participating
Employer and each other Related Employer designated to participate in the Plan
as herein provided, considered severally.
(hhh) "Plan" means the Defined Contribution Plan of American
Brands, Inc. and Participating Operating Companies.
(iii) "Plan Administrator" means American.
(jjj) "Plan Year" means the calendar year.
(kkk) "Post-Tax Transfer Contribution Account" means any one of
the accounts so designated and provided for in Section 6.01(h).
(lll) "Prior Plan" means, where applicable, the (a) Profit-Sharing
Plan of American Brands, Inc., (b) ACCO World Corporation Profit-Sharing Plan,
(c) Acushnet Company Employee Savings Plan, (d) Day-Timers, Inc. Profit-Sharing
and Employee Savings Plan, (e) Jim Beam Brands Co. Profit-Sharing and 401(k)
Savings Plan and (f) MasterBrand Industries, Inc. Employee Savings Plan, as in
existence on December 31, 1995 prior to this amendment and restatement and any
of their respective predecessor plans.
(mmm) "Profit-Sharing Account" means any one of the accounts so
designated and provided for in Section 6.01(a).
(nnn) "Profit-Sharing Contributions" means the contributions made
by a Participating Employer as provided in Article III.
(ooo) "Qualified Domestic Relations Order" means any Domestic
Relations Order that creates, recognizes or assigns to an Alternate Payee the
right to receive all or a portion of a Participant's benefits payable hereunder
and that meets the requirements of Section 414(p) of the Code, as determined by
the Committee.
(ppp) "Related Employer" means any corporation or other business
entity which is included in a controlled group of corporations within which
American is also included, as provided in Section 414(b) of the Code (as
modified for purposes of Sections 6.04 and 6.05 of this Plan by Section 415(h)
of the Code), or which is a trade or business under common control with
American, as provided in Section 414(c) of the Code (as modified, for purposes
of Sections 6.04 and 6.05, by Section 415(h) of the Code), or which constitutes
a member of an affiliated service group within which American is also included,
as provided in Section 414(m) of the Code, or which is required to be aggregated
with American pursuant to regulations issued under Section 414(o) of the Code.
(qqq) "Restatement Date" means January 1, 1996, the effective date
of the amendment and restatement of the Plan.
(rrr) "Retirement" means retirement under a retirement plan of a
Participating Employer or Non-Participating Employer.
(sss) "Rollover Account" means any of the accounts so designated
and provided for in Section 6.01(e).
(ttt) "Rollover Contributions" means amounts attributable to part
or all of an "eligible rollover distribution" (within the meaning of Section
402(c)(4) of the Code and the Treasury Regulations thereunder) transferred to
this Plan pursuant to Section 4.03 as the result of the distribution of a
Participant's account under another qualified trust, individual retirement
account or individual retirement annuity as defined in Section 4.03.
(uuu) "Severance From Service" means the earlier of the following
dates:
(1) The date on which a Participant terminates employment,
is discharged, retires or dies; or
(2) The first anniversary of the first day of a period in
which an Employee remains absent from service (with or without pay)
with a Participating Employer or Non-Participating Employer for any
reason other than one listed in paragraph (1). If such Employee is on
an Approved Leave of Absence on such first anniversary, he shall be
deemed to have incurred a Severance From Service on the expiration of
such Approved Leave of Absence, unless he returns to active employment
with his Participating Employer on or before that date. Notwithstanding
anything herein to the contrary, an Employee shall not incur a
Severance From Service due to an absence for maternity or paternity
reasons until the second anniversary of the first date of such absence.
For purposes of this paragraph, an absence from work for maternity or
paternity reasons means an absence:
(A) by reason of the pregnancy of the individual;
(B) by reason of a birth of a child of the individual;
(C) by reason of the placement of a child with the
individual in connection with the adoption of such child by
such individual; or
(D) for purposes of caring for such child for a
period beginning immediately following such birth or
placement.
The Employee shall be required to furnish the Committee with such
timely information as the Committee may reasonably require to establish
both that the absence from work is for maternity or paternity reasons
and the number of days for which there was such an absence.
(vvv) "Short-Term Investment Fund" means the portion of the Trust
Fund so designated and provided for in Section 5.01.
(www) "Small-Cap Growth Equity Fund" means the portion of the
Trust Fund so designated and provided for in Section 5.01.
(xxx) "S&P 500 Index Fund" means the portion of the Trust Fund so
designated and provided for in Section 5.01.
(yyy) "Supplemental Contribution Account" means any one of the
accounts so designated and provided for in Section 6.01(q).
(zzz) "Tax Deferred Account" means any one of the accounts so
designated and provided for in Section 6.01(c).
(aaaa) "Tax Deferred Contributions" means any contributions made
by a Participating Employer that are attributable to the reduction in
compensation a Participant agrees to accept from such Participating Employer
each Plan Year as described in Section 4.01.
(bbbb) "Termination of Employment Without Fault" means any
involuntary separation of a Participant by a Participating Employer or
Non-Participating Employer otherwise than by reason of Retirement, Disability,
failure to maintain work standards, dishonesty or other misconduct prejudicial
to the Participating Employer or Non-Participating Employer by which the
Participant is employed, absence without prescribed notice, or refusal to return
from layoff or Approved Leave of Absence within the prescribed period.
(cccc) "Transferred General Mills Plan Account" means any one of
the accounts so designated and provided for in Section 6.01(o).
(dddd) "Trust Agreement" and "Trust" mean, respectively, the
American Brands, Inc. Defined Contribution Plan Master Trust Agreement, as it
may be amended from time to time, and the trust established thereunder.
(eeee) "Trustee" means the trustee from time to time acting under
the Trust Agreement, including any successor trustee.
(ffff) "Trust Fund" means all money, securities and other property
held under the Trust Agreement for the purposes of the Plan, together with the
income therefrom.
(gggg) "Trusts Investment Committee" means the Trusts Investment
Committee of American.
(hhhh) "Valuation Date" means the Annual Valuation Date and each
other date, as determined from time to time by the Committee, as of which funds
and accounts are valued or adjusted as provided in Article VI.
(iiii) "Value Equity Fund" means the portion of the Trust Fund so
designated and provided for in Section 5.01.
(jjjj) "Value-Oriented Diversified Fund" means the portion of the
Trust Fund so designated and provided for in Section 5.01.
(kkkk) "Vesting Service" means a Participant's credit for purposes
of determining his right to a nonforfeitable benefit under the Plan, as
determined in accordance with Article VII. Such Vesting Service shall mean
service as an Employee with a Participating Employer or any Related Employer, as
follows:
(1) Vesting Service shall be determined from the Participant's
Date of Employment or reemployment in completed full years and
fractions of years in excess of completed full years, each twelve (12)
months of employment constituting a full year of Vesting Service, and
each thirty (30) days of employment completed in excess of full years
of Vesting Service counted as one-twelfth (1/12) of a year of Vesting
Service.
(2) Subject to paragraph (3) below, each Employee shall be
credited with Vesting Service during any period of employment with a
Participating Employer or Related Employer, extending to the date he
incurs a Severance From Service.
(3) Notwithstanding any other provision herein to the
contrary, if a Participant shall have incurred a Severance From Service
and is subsequently reemployed by a Participating Employer or a Related
Employer, his Vesting Service shall be reinstated, as follows:
(A) If the Employee is reemployed within twelve (12)
months after the date he is first absent from active
employment, the Vesting Service he had at the date of first
absence from active employment shall be reinstated upon his
reemployment, and he shall receive credit for Vesting Service
for the period between the date he was first absent from
active employment and his reemployment; or
(B) If the Employee is reemployed after twelve (12)
months have elapsed after such Severance From Service, the
Vesting Service he had at the time of such Severance From
Service shall be reinstated upon his reemployment, but he
shall not receive credit for Vesting Service for the period
between his Severance From Service and date of reemployment.
Notwithstanding the foregoing, the Vesting Service of each Participant for the
period prior to January 1, 1996 shall not be less than as determined under the
provisions of the applicable Prior Plan.
(llll) "Withdrawal Account" means any one of the accounts so
designated and provided for in Section 6.01(f).
(mmmm) "Year of Eligibility Service" means any consecutive twelve
(12) month period of employment, as herein set forth, during which an Employee
completes one thousand (1,000) or more Hours of Service. The first consecutive
twelve (12) month period to be taken into account for this purpose shall be the
consecutive twelve (12) month period commencing with the Employee's Date of
Employment or the Employee's date of reemployment. The second consecutive twelve
(12) month period to be taken into account for this purpose shall be the Plan
Year which includes the first anniversary of the Employee's Date of Employment
or the Employee's date of reemployment. All subsequent twelve (12) month periods
to be taken into account for this purpose shall correspond with Plan Years.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.01. Eligibility.
(a) Participants in Prior Plan. Each Employee who was a
Participant in the Prior Plan on the day prior to the Restatement Date shall
continue to be a Participant in the Plan on the Restatement Date, provided he
remains an Employee.
(b) Participation in Profit-Sharing. Each Employee of American or
an ACCO Participating Employer, Beam Participating Employer or Day-Timers
Participating Employer who was not a Participant in the Prior Plan on the day
prior to the Restatement Date shall become a Participant for purposes of Article
III on the first Entry Date on or after the Restatement Date which is coincident
with or next succeeding the date on which he has completed one (1) Year of
Eligibility Service, provided he is an Employee on that date.
(c) Participation in 401(k) Savings. Each Employee who was not a
Participant in the Prior Plan on the day prior to the Restatement Date shall be
eligible to have Tax Deferred Contributions made on his behalf in accordance
with Article IV on the first Entry Date on or after the Restatement Date which
is coincident with or next succeeding the date on which he has completed at
least one (1) Year of Eligibility Service, provided he is an Employee on that
date.
2.02. Transfers From Non-Participating Employers. Each person
becoming an Employee of American or an ACCO Participating Employer, Beam
Participating Employer or Day-Timers Participating Employer upon transfer from a
Non-Participating Employer shall become a Participant for purposes of Article
III on the later of the (1) first Entry Date which is coincident with or next
succeeding the date on which he has completed one (1) Year of Eligibility
Service, provided he is an Employee on that date and (2) date of his transfer to
such Participating Employer. Each person becoming an Employee of any
Participating Employer upon transfer from a Non-Participating Employer shall be
eligible to have Tax Deferred Contributions made on his behalf in accordance
with Article IV on the later of the (1) first Entry Date which is coincident
with or next succeeding the date on which he has completed one (1) Year of
Eligibility Service, provided he is an Employee on that date and (2) date of his
transfer to such Participating Employer.
2.03. Reemployment. Any Participant who terminates employment and
is subsequently reemployed as an Employee shall become a Participant on the
first Entry Date coincident with or immediately following his reemployment.
2.04. Transitional Provision for Employees of Acushnet
Participating Employers. Notwithstanding any other provision of this Plan to the
contrary, for purposes of crediting service for eligibility to participate in
this Plan for the Plan Year ending December 31, 1996, each Employee of an
Acushnet Participating Employer shall receive credit for eligibility service
based upon the provisions of this Plan in effect on January 1, 1996 or the
provisions of the Acushnet Company Employee Savings Plan in effect on December
31, 1995, whichever provides the greatest service credit for eligibility
purposes. Under the Acushnet Company Employee Savings Plan in effect on December
31, 1995, each Employee of an Acushnet Participating Employer was eligible to
participate in such plan on the first day of the month on or after he completed
his employment anniversary.
ARTICLE III
PROFIT-SHARING CONTRIBUTIONS
3.01. Profit-Sharing Contributions of American.
(a) Amount. Subject to the provisions of Sections 3.01(c) and 3.05
and to the provisions of Article XIV, American shall for each Plan Year
contribute under the Plan an amount equal to one-sixth (1/6) of one percent (1%)
of Adjusted Income From Continuing Operations for such Plan Year.
Notwithstanding the foregoing, no Profit-Sharing Contribution shall be made
pursuant to this Section 3.01(a) for any Plan Year in which a cash dividend
shall not have been paid on American Common Stock.
(b) Certification of Amounts. The amount of any Profit-Sharing
Contribution under Section 3.01(a) to be paid for any Plan Year shall be
certified by the independent public accountants who have audited the books of
American for such year and shall be conclusive on American, the Committee, the
Trustee, all Participants and former Participants and all persons claiming
through a Participant or former Participant.
(c) Time for Making Profit-Sharing Contributions. The
Profit-Sharing Contribution under Section 3.01(a) for any Plan Year shall accrue
as of the last day of such Plan Year, but payment thereof may be made at any
time and from time to time (whether before or after the certification referred
to in Section 3.01(b)) prior to the time prescribed by law, or such time as
extended, for filing American's Federal income tax return for such Plan Year.
(d) Allocation to Accounts. Any Profit-Sharing Contribution made
by American pursuant to this Section 3.01 shall be allocated to the
Profit-Sharing Accounts of its eligible Participants in the same proportion as
the Adjusted Earnings for each such Participant bears to the total Adjusted
Earnings of all such eligible Participants for that Plan Year.
(e) Eligibility for Allocation. For purposes of this Section 3.01,
each Participant who is an Employee of American shall be entitled to an
allocation of any Profit-Sharing Contribution of American for a Plan Year if he
is an active Employee of American on any day during the Plan Year for which such
Profit-Sharing Contribution is made. Each Participant who is an Employee of
American shall be entitled to an allocation of any Profit-Sharing Contribution
of American for the Plan Year in which he initially becomes a Participant based
upon his Adjusted Earnings for the entire Plan Year.
(f) Excess Contribution Percentage Limitation. The Excess
Contribution Percentage for any Plan Year otherwise apportionable under this
Section 3.01 and Section 6.04 to a Participant who is an Employee of American
shall not exceed the lesser of:
(1) the Base Contribution Percentage multiplied by two
(2.0); or
(2) the Base Contribution Percentage plus the greater of
five and seven-tenths percent (5.7%) or such higher percentage equal
to the portion of the rate of tax under Section 3111(a) of the Code
attributable to old-age insurance.
For purposes of this Section 3.01(f), the "Base Contribution Percentage" shall
mean the percentage of the Participant's compensation which is allocated under
the Plan with respect to that portion of the Participant's compensation not in
excess of the Social Security taxable wage base for such Plan Year, and the
"Excess Contribution Percentage" shall mean the percentage of the Participant's
compensation which is allocated under the Plan with respect to that portion of
the Participant's compensation in excess of the Social Security taxable wage
base for such Plan Year. The amount of any reduction of the contribution of
American effected solely by reason of the application of this Section 3.01(f)
shall be reapportioned to each Participant in the ratio that his Unadjusted
Earnings for such Plan Year bear to the aggregate Unadjusted Earnings of all
Participants employed by American for that year. The reapportionment of the
reduction provided by this Section 3.01(f) shall be applicable only with respect
to Participants employed by American.
(g) Definitions. For purposes of this Section 3.01 and, where
applicable, Section 3.05, the following terms shall have the following meaning:
(1) "Adjusted Earnings" means with respect to any Participant
who is an Employee of American the sum of (A) the Unadjusted Earnings
of the Participant in any Plan Year not in excess of the Social
Security taxable wage base in effect for such Plan Year and (B) an
amount equal to one and one-half (1-1/2) times such Unadjusted Earnings
in excess of the Social Security taxable wage base in effect for such
Plan Year.
(2) "Adjusted Income From Continuing Operations" for any Plan
Year means income from continuing operations, before income taxes, as
reflected in the consolidated financial statements set forth in the
annual report for such year of American to its stockholders, but
adjusted by the independent accountants who have audited American's
consolidated financial statements to (A) exclude the provision for the
contributions under the Plan, (B) exclude unrealized gains and losses
on securities, and adjust realized gains and losses on trading
securities to reflect cost, (C) exclude restructuring charges or
credits, and charges for impaired assets other than those sold in the
ordinary course of business, (D) include the results of operations for
such year from businesses classified as "discontinued operations" prior
to the disposition dates, and (E) to the extent not adjusted pursuant
to items (B), (C) or (D) above, exclude gains or losses included in
continuing operations resulting from the sale or writedown of
intangible assets, land or buildings, investments in business units and
securities resulting from the sale of business units.
(3) "Unadjusted Earnings" means with respect to any
Participant who is an Employee of American all earnings of the
Participant in any Plan Year for service with American, but limited to
one hundred fifty thousand dollars ($150,000) (adjusted for increases
in the cost of living pursuant to rulings of the Secretary of the
Treasury), including overtime and extra shift pay, holiday and vacation
pay, amounts paid for periods of approved absences, back pay which has
been either awarded or agreed to by American, plus amounts elected to
be deferred by the Participant as Tax Deferred Contributions under this
Plan or as contributions under a plan established pursuant to Section
125 of the Code, or Section 119 of the Code, and all compensation under
the Management Incentive Plan and Article XII of the By-laws of
American paid during such Plan Year, but excluding (A) contributions
(other than Tax Deferred Contributions) or benefits under this Plan,
(B) Worker's Compensation payments, (C) amounts paid by American for
insurance, retirement or other benefits and bonuses, and (D)
compensation under said Management Incentive Plan and Article XII paid
after the end of the Plan Year in which the Participant incurs a
Severance From Service.
3.02. Profit-Sharing Contributions of ACCO Participating
Employers.
(a) Amount. The amount of Profit-Sharing Contribution, if any, for
a Plan Year shall be determined by the board of directors of each ACCO
Participating Employer, in its sole discretion, on or before the date (including
extensions) for filing the Federal income tax return of the ACCO Participating
Employer for the taxable year for which the Profit-Sharing Contribution is to be
made. An ACCO Participating Employer may determine that no Profit-Sharing
Contribution will be made for a particular year.
(b) Allocation to Accounts. Any Profit-Sharing Contribution made
by an ACCO Participating Employer shall be allocated, as follows, among the
Profit-Sharing Accounts and Cash Option Accounts of its eligible Participants in
the same proportion as the Compensation for each such Participant bears to the
total Compensation of all such eligible Participants for that Plan Year. The
Profit-Sharing Account of each such Participant shall be credited with
two-thirds (2/3) of the Profit-Sharing Contribution so allocable. The remainder
of the Profit-Sharing Contribution so allocable shall be distributed to the
Participant in cash or credited to his Cash Option Account, as provided in
Section 3.02(e).
(c) Eligibility for Allocation. A Participant whose ACCO
Participating Employer makes a Profit-Sharing Contribution for a Plan Year shall
be entitled to an allocation of such Profit-Sharing Contribution only if he is
an active Employee of an ACCO Participating Employer on the last day of the Plan
Year. Notwithstanding the foregoing, a Participant shall be entitled to an
allocation of a Profit-Sharing Contribution for the Plan Year in which his
employment terminates due to death, Disability or his retirement on or after his
Normal Retirement Age and for any Plan Year in which he is transferred to a
Related Employer which is not an ACCO Participating Employer, even if he is not
employed on the last day of the Plan Year.
(d) Definitions. For purposes of this Section 3.02 and, where
applicable, Section 3.05, the following term shall have the following meaning:
(1) "Compensation" of a Participant who is an Employee of an
ACCO Participating Employer means (A) in the case of a Participant paid
on the basis solely of a salary, the total salary excluding bonuses and
overtime paid for such Participant by an ACCO Participating Employer
for Vesting Service during the Plan Year, (B) in the case of a
Participant paid on an hourly basis, the straight time rate paid for
such Participant by an ACCO Participating Employer to a maximum of two
thousand eighty (2,080) hours for Vesting Service during the Plan Year,
and (C) in the case of a Participant employed as a sales
representative, the total base salary and commissions paid for such
Participant by an ACCO Participating Employer for Vesting Service
during the Plan Year, in each case including amounts, if any, deferred
under Section 4.01 of the Plan or under Section 125 of the Code, and
excluding the one-third (1/3) of the Profit-Sharing Contribution
allocable to a Participant pursuant to this Section 3.02. If a
Participant enters the Plan during the Plan Year, he shall be given
credit for that Compensation paid to him by an ACCO Participating
Employer for Vesting Service from the date he becomes a Participant to
the end of the Plan Year, subject to the limitations of Section
3.02(d)(1). The Compensation taken into account under the Plan for any
Plan Year shall be limited to one hundred fifty thousand dollars
($150,000), adjusted for increases in the cost of living pursuant to
rulings of the Secretary of the Treasury.
(e) Cash Option Contributions for Participants Employed by ACCO
Participating Employers. Each Participant who is an Employee of an ACCO
Participating Employer may elect to have a part, not in excess of one-third
(1/3) of the Profit-Sharing Contribution for a Plan Year allocable to him
pursuant to this Section 3.02, distributed to him in cash at the time such
Profit-Sharing Contribution is made; provided, however, that such election
(which shall have continuing effect) is in writing, signed by such Participant,
on a form approved by the Committee and irrevocable not later than December 31
of such Plan Year. Any such amount which the Participant does not elect to have
distributed to him shall be allocated to his Cash Option Account.
Notwithstanding the foregoing, a Cash Option Contribution shall be distributed
in cash if necessary to satisfy the requirements of Section 4.05.
3.03. Profit-Sharing Contributions of Beam Participating
Employers.
(a) Amount. Subject to the provisions of Sections 3.03(c) and 3.05
and the provisions of Article XIV, the Beam Participating Employers shall for
each Plan Year contribute under the Plan an amount equal to the sum of:
(1) one percent (1%) of Net Income Before Taxes for such Plan
Year to the extent that such Net Income shall not be in excess of six
million dollars ($6,000,000);
(2) two percent (2%) of any part of such Net Income Before
Taxes that shall be in excess of six million dollars ($6,000,000) and
shall not be in excess of nine million dollars ($9,000,000); and
(3) three percent (3%) of any part of such Net Income Before
Taxes that shall be in excess of nine million dollars ($9,000,000).
Notwithstanding the foregoing, no Profit-Sharing Contribution shall be made
pursuant to this Section 3.03(a) for any Plan Year for which Net Income Before
Taxes shall not have equaled or exceeded twelve percent (12%) of Net Worth for
such Plan Year.
(b) Determination of Amounts. The amount of the Profit-Sharing
Contribution of the Beam Participating Employers under Section 3.03(a) to be
paid for any Plan Year and the amounts of the Beam Participating Employers'
shares thereof under Section 3.03(c) shall be determined by the Controller of
Beam or such other financial officer of Beam as may from time to time be
designated by the board of directors of Beam. The Beam Participating Employers
shall obtain a letter from the independent certified public accountants who have
examined the consolidated financial statements of American and subsidiaries for
such year to the effect that in connection with such examination they have
reviewed the determination of such amounts and that in their opinion such
determination has been made in accordance with the provisions of Sections
3.03(a) and (c) and Section 3.05. The review made by such accountants shall
include comparison of the elements entering into the computation of Net Income
Before Taxes and Net Worth with the books and records of the Beam Participating
Employers, and with the consolidating adjustments made by American in preparing
the consolidated financial statements included in its report to stockholders.
The contents of each such letter shall be conclusive on the Beam Participating
Employers, the Committee, the Trustee, all Participants and former Participants
and all persons claiming through a Participant or former Participant.
(c) Shares of Beam Participating Employers. Each Beam
Participating Employer's share of the Profit-Sharing Contribution of the Beam
Participating Employers for any Plan Year shall be determined as follows:
(1) Such share shall be such amount as will bear the same
ratio to such Profit-Sharing Contribution as the total of the
Adjusted Earnings for such year of Participants employed by such Beam
Participating Employer bears to the aggregate Adjusted Earnings
for that year of all Participants employed by the Beam Participating
Employers. If the share, computed severally, of a Beam
Participating Employer for any Plan Year exceeds its current and
accumulated earnings or profits, that Beam Participating Employer
shall not pay the amount of such share in excess of such current and
accumulated earnings or profits, but such amount shall be paid
by the other Beam Participating Employers in accordance with,
and to the extent deductible by them under, Section
404(a)(3)(B) of the Code (or such other Federal income tax statutory
provisions as shall at the time be applicable). The Beam
Participating Employers that pay any part of any such excess shall
receive appropriate reimbursement therefor from the Beam Participating
Employer for which it is paid.
(2) Such share shall accrue as of the last day of such Plan
Year, but payment thereof may be made at any time and from time to
time (whether before or after the determination referred to in Section
3.03(b)) prior to the time prescribed by law, or such time as
extended, for filing such Beam Participating Employer's Federal income
tax return for such Plan Year. Any overpayment by a Beam Participating
Employer shall not be refunded to it but the Beam Participating
Employer shall deduct such overpayment from its share of contributions
otherwise payable for the succeeding Plan Year or Plan Years.
(d) Allocation to Accounts. Any Profit-Sharing Contribution made
by a Beam Participating Employer pursuant to this Section 3.03 shall be
allocated to the Profit-Sharing Accounts of its eligible Participants in the
same proportion as the Adjusted Earnings for each such Participant bears to the
total Adjusted Earnings of all such eligible Participants for that Plan Year.
(e) Eligibility for Allocation. For purposes of this Section 3.03,
each Participant who is an Employee of a Beam Participating Employer shall be
entitled to an allocation of any Profit-Sharing Contribution of the Beam
Participating Employers for a Plan Year only if he completed at least one
thousand (1,000) Hours of Service in such Plan Year. Notwithstanding the
foregoing, a Participant shall be entitled to an allocation of any
Profit-Sharing Contribution for the Plan Year in which his employment terminates
due to Retirement, Disability, Termination of Employment Without Fault or death.
Each Participant who is an Employee of a Beam Participating Employer shall be
entitled to an allocation of any Profit-Sharing Contribution of a Beam
Participating Employer for the Plan Year in which he initially becomes a
Participant based upon his Adjusted Earnings for the entire Plan Year; provided
he is otherwise entitled to an allocation of such Profit-Sharing Contribution
for such Plan Year in accordance with this Section 3.03(e).
(f) Excess Contribution Percentage Limitation. The Excess
Contribution Percentage for any Plan Year otherwise apportionable under this
Section 3.03 and Section 6.04 to a Participant who is an Employee of a Beam
Participating Employer shall not exceed the lesser of:
(1) the Base Contribution Percentage multiplied by two
(2.0); or
(2) the Base Contribution Percentage plus the greater of
five and seven-tenths percent (5.7%) or such higher percentage equal
to the portion of the rate of tax under Section 3111(a) of the Code
attributable to old-age insurance.
For purposes of this Section 3.03(f), the "Base Contribution Percentage" shall
mean the percentage of the Participant's compensation which is allocated under
the Plan with respect to that portion of the Participant's compensation not in
excess of the Social Security taxable wage base for such Plan Year, and the
"Excess Contribution Percentage" shall mean the percentage of the Participant's
compensation which is allocated under the Plan with respect to that portion of
the Participant's compensation in excess of the Social Security taxable wage
base for such Plan Year. The amount of any reduction of the contribution of a
Beam Participating Employer effected solely by reason of the application of this
Section 3.03(f) shall be reapportioned to each Participant in the ratio that his
Unadjusted Earnings for such Plan Year bear to the aggregate Unadjusted Earnings
of all Participants employed by such Beam Participating Employer for that year.
The reapportionment of the reduction provided by this Section 3.03(f) shall be
applicable only with respect to Participants employed by the same Beam
Participating Employer as the Participant that suffered the reduction.
(g) Definitions. For purposes of this Section 3.03 and, where
applicable, Section 3.05, the following terms shall have the following meaning:
(1) "Adjusted Earnings" means, with respect to any
Participant who is an Employee of a Beam Participating Employer, the
sum of (A) the Unadjusted Earnings of the Participant in any Plan Year
not in excess of the Social Security taxable wage base in effect for
such Plan Year and (B) an amount equal to one and one-half times such
Unadjusted Earnings in excess of the Social Security taxable wage base
in effect for such Plan Year.
(2) "Net Income Before Taxes" for any Plan Year means the
income, before taxes on income and before the Profit-Sharing
Contribution under the Plan, reflecting the consolidated results of
the operations for that year of Beam and its subsidiaries as used in
consolidating such results with the operating results of American and
its other consolidated subsidiaries, but adjusted to (A) exclude all
gain in excess of loss resulting from sales or other dispositions of
land, buildings, goodwill, brands, trademarks and investments in
subsidiaries or other companies and (B) reflect certain consolidating
adjustments made by American, including elimination of interest
expense on long-term notes given to American in connection with the
reorganization of the American group of companies.
(3) "Net Worth" for any Plan Year means the amount reflected
in the consolidated financial statements of Beam representing the
stockholders' equity at the end of the calendar year immediately
preceding such Plan Year, after reflecting the cumulative
consolidating adjustments referred to in this Section.
(4) "Unadjusted Earnings" means, with respect to any
Participant who is an Employee of a Beam Participating Employer, all
earnings of the Participant in any Plan Year as an Employee of the
Beam Participating Employers, but limited to one hundred fifty
thousand dollars ($150,000) (adjusted for increases in the cost of
living pursuant to rulings of the Secretary of the Treasury),
including overtime, holiday and vacation pay, amounts paid for periods
of approved absences and incentive pay, back pay which has been either
awarded or agreed to by the Beam Participating Employers, plus amounts
elected to be contributed by the Participant under a plan established
pursuant to Section 125 of the Code and compensation under the Jim
Beam Brands Co. Senior Executive and Key Manager Incentive Plan and
Salesmen's Achievement Incentive Bonus Plan, but excluding (A) all
other bonuses and contributions or benefits under this Plan and taste
testing payments, (B) Worker's Compensation payments, (C) amounts paid
by the Beam Participating Employers for insurance, retirement or other
benefits and (D) all payments under the Jim Beam Brands Co. Senior
Executive and Key Manager Incentive Plan and compensation under the
Salesmen's Achievement Incentive Bonus Plan paid after the end of the
Plan Year in which the Participant incurs a Severance From Service.
3.04. Profit-Sharing Contributions of Day-Timers Participating
Employers.
(a) Amount. Subject to the conditions and limitations of Sections
3.04(c) and 3.05 and of Article XIV, the Day-Timers Participating Employers
shall for each Plan Year contribute under the Plan an amount equal to the
applicable percentage of aggregate Compensation specified in (1), (2) or (3)
below based upon a percentage increase in Operating Company Contribution for
such Plan Year over the Operating Company Contribution for the immediately
preceding Plan Year, as determined by the ACCO Salary Committee:
(1) one percent (1%) of the aggregate Compensation of all
Participants eligible in accordance with Section 3.04(e) to receive a
portion of the Profit-Sharing Contribution for the Plan Year, provided
that the Operating Company Contribution for the Plan Year shall have
increased by at least ten percent (10%) but less than twelve and
one-half percent (12.5%) over the Operating Company Contribution for
the immediately preceding Plan Year;
(2) two percent (2%) of the aggregate Compensation of all
Participants eligible in accordance with Section 3.04(e) to receive a
portion of the Profit-Sharing Contribution for the Plan Year, provided
that the Operating Company Contribution for the Plan Year shall have
increased by at least twelve and one-half percent (12.5%) but less
than fifteen percent (15%) over the Operating Company Contribution for
the immediately preceding Plan Year; or
(3) three percent (3%) of the aggregate Compensation of all
Participants eligible in accordance with Section 3.04(e) to receive a
portion of the Profit-Sharing Contribution for the Plan Year, provided
that the Operating Company Contribution for the Plan Year shall have
increased by at least fifteen percent (15%) over the Operating Company
Contribution for the immediately preceding Plan Year.
Notwithstanding the foregoing, no Profit-Sharing Contribution shall be made
pursuant to this Section 3.04 for any Plan Year in which the Operating Company
Contribution has not increased by at least ten percent (10%) over the Operating
Company Contribution for the immediately preceding Plan Year.
(b) Determination of Amounts. The amount of the Profit-Sharing
Contribution of the Day-Timers Participating Employers under Section 3.04(a) for
any Plan Year and the amounts of the Day-Timers Participating Employers' shares
thereof under Section 3.04(c) shall be determined by both the President and
Chief Financial Officer of Day-Timers or such other officers of Day-Timers as
may from time to time be designated by the board of directors of Day-Timers. The
Day-Timers Participating Employers shall obtain a letter from the independent
public accountants who have examined the consolidated financial statements of
American and the subsidiaries for such year or, in those instances where the
examination of Day-Timers' annual financial statements is conducted by the
members of the Internal Audit Department of American, a letter from the Director
of Internal Audit of American, to the effect that in connection with such
examination they have reviewed the determination of such amounts and that in
their opinion such determination has been made in accordance with the provisions
of this Section 3.04. The review made by such accountants shall include
comparison of the elements entering into the computation of Operating Company
Contribution with the books and records of Day-Timers, and with the
consolidating adjustments made by American in preparing the consolidated
financial statements included in its report to stockholders. The contents of
each such letter shall be conclusive on the Day-Timers Participating Employers,
the Committee, the Trustee, all Participants and former Participants and all
persons claiming through a Participant or former Participant.
(c) Shares of Day-Timers Participating Employers. Each Day-Timers
Participating Employer's share of the Profit-Sharing Contribution of the
Day-Timers Participating Employers for any Plan Year shall be such amount as
will bear the same ratio to such Profit-Sharing Contribution as the total of the
Compensation for such year of Participants eligible to receive a portion of the
Profit-Sharing Contribution in accordance with Section 3.04(e) and employed by
such Day-Timers Participating Employer bears to the aggregate Compensation for
that year of all Participants eligible to receive a portion of the
Profit-Sharing Contribution in accordance with Section 3.04(e). If the share,
computed severally, of a Day-Timers Participating Employer for any Plan Year
exceeds its current and accumulated earnings or profits, that Day-Timers
Participating Employer shall not pay the amount of such share in excess of such
current and accumulated earnings or profits, but such amount shall be paid by
the other Day-Timers Participating Employers in accordance with, and to the
extent deductible by them under, Section 404(a)(3)(B) of the Code (or such other
Federal income tax statutory provisions as shall at the time be applicable). The
Day-Timers Participating Employers that pay any part of any such excess shall
receive appropriate reimbursement therefor from the Day-Timers Participating
Employer for which it is paid. Any overpayment by a Day-Timers Participating
Employer shall not be refunded to it but the Day-Timers Participating Employer
shall deduct such overpayment from its share of Profit-Sharing Contributions
otherwise payable for the succeeding Plan Year or Plan Years.
(d) Allocation to Accounts. As of the last Valuation Date of a
Plan Year, there shall be apportioned to each Profit-Sharing Account of a
Participant who is otherwise eligible in accordance with Section 3.04(e) to
receive a portion of the Profit-Sharing Contribution for such Plan Year an
amount as will bear the same ratio of such Profit-Sharing Contribution as the
eligible Participant's Compensation for the Plan Year bears to the aggregate
Compensation of all Participants eligible in accordance with Section 3.04(e) for
the Plan Year.
(e) Eligibility for Allocation. For purposes of this Section 3.04,
each Participant who is an Employee of a Day-Timers Participating Employer shall
be entitled to an allocation of any Profit-Sharing Contribution of the
Day-Timers Participating Employers for a Plan Year only if he is a Participant
in the Plan on the last day of such Plan Year or if he terminates employment by
reason of his (1) retirement on or after his sixty-fifth (65th) birthday, (2)
retirement on or after his fifty-fifth (55th) birthday and completion of at
least five (5) years of service, (3) Disability or (4) death, in such Plan Year.
Each Participant who is an Employee of a Day-Timers Participating Employer shall
be entitled to an allocation of any Profit-Sharing Contribution of a Day-Timers
Participating Employer for the Plan Year in which he initially becomes a
Participant based upon his Compensation for the entire Plan Year; provided he is
otherwise entitled to an allocation of such Profit-Sharing Contribution for such
Plan Year in accordance with this Section 3.04(e).
(f) Definitions. For purposes of this Section 3.04, the following
terms shall have the following meaning:
(1) "Compensation" of a Participant who is an Employee of a
Day-Timers Participating Employer means, for the period after an
Employee becomes a Participant, (A) for a Participant paid on a
salaried basis, such Participant's total base salary plus commissions,
(B) for an hourly-paid Participant, such Participant's straight-time
rate up to a maximum of two thousand eighty (2,080) hours during the
Plan Year plus commissions and (C) for a Participant paid on a
commissions-only basis, such Participant's commissions, but in any
event excluding (i) gifts, overtime, bonuses, severance pay (whether
paid before or after the date of termination of employment), (ii)
amounts deferred under a plan of a Day-Timers Participating 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, or (vii) remuneration paid in currency other than
U.S. dollars and other payments from the Day-Timers Participating
Employer and limited to one hundred fifty thousand dollars ($150,000)
annually (adjusted for increases in the cost of living pursuant to
rulings of the Secretary of the Treasury).
(2) "Operating Company Contribution" means for a Plan Year
the operating income of Day-Timers, Day-Timer Concepts, Inc.,
Day-Timers of Canada, Ltd., Day-Timers Pty. Limited, Day-Timers of
Europe, Superstores Business Venture, and Day-Timers Technology
Business Venture excluding amortization of intangibles for such Plan
Year.
3.05. Reduction of Profit-Sharing Contributions. Profit-Sharing
Contributions payable pursuant to this Article III and the shares thereof of
each Participating Employer otherwise payable pursuant thereto shall be subject
to the following reductions:
(a) Reduction for Forfeitures. Profit-Sharing Contributions
otherwise payable pursuant to this Article III shall be reduced by the total
amounts forfeited by Plan Participants during such Plan Year in accordance with
applicable provisions of Section 7.05 minus the amounts required to be
reinstated in accordance with applicable provisions of Section 7.06.
(b) Reduction for Excess Annual Additions. Profit-Sharing
Contributions otherwise payable pursuant to this Article III shall be further
reduced by the amount, if any, by which the amount of the portion of the
contribution of a Participating Employer otherwise apportionable to a
Participant is reduced pursuant to Sections 6.04 and 6.05.
(c) Reduction for Annual Limitation on Compensation.
Profit-Sharing Contributions otherwise payable pursuant to this Article III
shall be further reduced by the amount, if any, by which the amount of the
portion of such contribution otherwise apportionable to a Participant is reduced
because the Participant's Unadjusted Earnings or Compensation, whichever is
applicable, is limited to one hundred fifty thousand dollars ($150,000)
(adjusted for increases in the cost of living pursuant to rulings of the
Secretary of the Treasury).
(d) Reduction for Maximum Deductible Limitation. The Participating
Employers' Profit-Sharing Contribution for any Plan Year and the aggregate of
such share and its contributions under its retirement plan for such year shall
in no event exceed the maximum amounts deductible from the Participating
Employers' income for such year under Sections 404(a)(3) and (7) of the Code (or
such other Federal income tax statutory provisions as shall at the time be
applicable). If such share or such aggregate for any Participating Employer
would otherwise exceed either of such maximum deductible amounts, the
contributions under this Plan for such year shall be reduced pro rata by the
amount necessary to reduce such share or such aggregate to the amount so
deductible.
3.06. Cash or Property. Any Profit-Sharing Contribution made
pursuant to this Article III may be made in whole or in part in cash or in
property acceptable to the Trustee at the Fair Market Value thereof on the date
of the receipt thereof by the Trustee.
3.07. Source. Participants shall not make any contributions under
the Plan except as provided in Article IV.
3.08. Irrevocability. All Profit-Sharing Contributions made under
the Plan pursuant to this Article III shall be irrevocable and shall be
transferred by the respective Participating Employer to the Trustee (except any
amounts distributed in cash pursuant to Section 3.02) to be used only in
accordance with the provisions of the Plan.
ARTICLE IV
401(k) SAVINGS CONTRIBUTIONS
4.01. Tax Deferred Contributions.
(a) Rate of Tax Deferred Contributions. Each Participant shall
have the option to enter into a written salary reduction agreement with his
Participating Employer which shall be applicable to all compensation received
thereafter. The salary reduction agreement shall provide that the Participant
agrees to accept a reduction in salary from the Participating Employer by an
amount equal to an integral percentage of up to seventeen percent (17%) of his
Compensation (as defined in Section 4.01(e)), subject to the limitations of this
Article IV. The Participating Employer may limit the maximum salary reduction
percentage to a lesser percentage of Compensation, provided such policy does not
impermissibly discriminate against Employees who are not Highly Compensated
Employees. Tax Deferred Contributions shall be paid at least monthly to the
Trustee by the Participating Employers.
(b) Change in Rate of Tax Deferred Contributions. Each Participant
may elect to change the rate of his Tax Deferred Contributions effective as of
the first day of any month.
(c) Discontinuance and Resumption of Tax Deferred Contributions.
Each Participant may elect to discontinue his Tax Deferred Contributions at any
time. Each Participant may elect to resume his Tax Deferred Contributions as of
the first day of any month after the date as of which such contributions were
discontinued.
(d) Notice Requirement. Any election to change the rate of Tax
Deferred Contributions pursuant to Section 5.02(b) and any election to
discontinue or resume Tax Deferred Contributions pursuant to Section 5.02(c)
must be made within the time period prior to the effective date of such change,
discontinuance or resumption as may be designated by the Committee. Such
election shall be made in accordance with the voice response system implemented
by the Participant's Participating Employer, or, if required by such
Participating Employer, by means of a written notice to such Participating
Employer, on a form approved by the Committee. The Committee may establish
additional rules regarding the timing and frequency of a change in the amount of
Tax Deferred Contributions, provided such policy is applied uniformly to all
Participants of the Participating Employer.
(e) Definitions of Compensation. For purposes of Sections 4.01 and
4.02, the term "Compensation" shall mean:
(1) For each Participant who is an Employee of American, his
"Unadjusted Earnings" as defined in Section 3.01(g).
(2) For each Participant who is an Employee of an ACCO
Participating Employer, the total cash remuneration paid by such ACCO
Participating Employer to the Participant in a Plan Year for services,
including base pay, bonuses, overtime pay, commissions and amounts, if
any, deferred under this Section 4.01 of the Plan or under Section 125
of the Code, but excluding the one-third (1/3) of the Profit-Sharing
Contributions allocable to a Participant pursuant to Section 3.02.
(3) For each Participant who is an Employee of an Acushnet
Participating Employer, all salaries paid and commissions earned by an
Employee for the services rendered by such Employee to the Acushnet
Participating Employers, but excluding any special payments such as
prizes, awards, moving expenses, tuition reimbursement, etc. Such
Compensation shall be determined as if the Participant had not entered
into a salary reduction agreement pursuant to this Section 4.01 of the
Plan or Section 125 of the Code.
(4) For each Participant who is an Employee of a Beam
Participating Employer, his base pay plus overtime for the pay period.
(5) For each Participant who is an Employee of a Day-Timers
Participating Employer or MasterBrand Participating Employer, his
basic salary or wages, overtime, shift premiums, commissions and
bonuses paid by such Participating Employer for personal services, and
other amounts includible in his gross income on account of such
services, including Tax Deferred Contributions under this Section 4.01
of the Plan or amounts elected to be contributed under a program
established pursuant to Section 125 of the Code and excluding any (A)
severance pay whether paid before or after termination of employment,
(B) amounts deferred under a plan of a Related Employer until such
amounts are paid, (C) amounts paid under any long-term incentive plan,
(D) tax protection payments or foreign service overbase allowances or
premiums, (E) reimbursement for expenses incurred or to be incurred,
(F) non-cash remuneration such as taxable amounts for life insurance
coverage or use of an automobile or stock options or awards, or (G)
remuneration paid in currency other than U.S. dollars.
Notwithstanding the foregoing, in each case the Compensation of a Participant
shall be limited to one hundred fifty thousand dollars ($150,000) in each Plan
Year (adjusted for increases in the cost of living pursuant to rulings of the
Secretary of the Treasury).
(f) Notwithstanding any other provision of this Plan to the
contrary, a Participating Employer may refuse to give effect to any salary
reduction agreement or cash option election entered into by a Participant at any
time if the Participating Employer determines that such refusal is necessary to
ensure that the additions to a Participant's Accounts for any Plan Year shall
not exceed the limitations set forth in Sections 4.04, 4.05, 4.07 and Sections
6.04, 6.05 and 6.07 of the Plan.
4.02. Company Matching Contributions.
(a) Rate of Company Matching Contributions. Subject to the
conditions and limitations of this Article IV and Article XIV, American and each
ACCO Participating Employer, Acushnet Participating Employer, Day-Timers
Participating Employer and MasterBrand Participating Employer shall contribute
under the Plan each year for each Participant in its employ during such year an
amount based on the Tax Deferred Contributions, if any, made on his behalf
during such year by such Participating Employer. The Company Matching
Contribution for each Participant employed by American and each Day-Timers
Participating Employer or MasterBrand Participating Employer shall be equal to
fifty percent (50%) of the Participant's Tax Deferred Contributions to the
extent the rate of such Tax Deferred Contributions in effect from time to time
does not exceed six percent (6%) of his Compensation. Except as provided in
Section 4.02(b), the Company Matching Contribution for each Participant employed
by an ACCO Participating Employer shall be equal to thirty percent (30%) of the
Participant's Tax Deferred Contributions to the extent the rate of such Tax
Deferred Contributions in effect from time to time does not exceed six percent
(6%) of his Compensation. The Company Matching Contribution for each Participant
employed by an Acushnet Participating Employer shall be equal to fifty percent
(50%) of the Participant's Tax Deferred Contributions to the extent the rate of
such Tax Deferred Contributions in effect from time to time does not exceed five
percent (5%) of his Compensation and an additional fifty percent (50%) of the
Participant's Tax Deferred Contributions to the extent the rate of such Tax
Deferred Contributions in effect from time to time does not exceed two percent
(2%) of his Compensation. Notwithstanding any other provision of this Plan to
the contrary, no Company Matching Contributions shall be made with respect to
Tax Deferred Contributions of any Participant employed by any Beam Participating
Employer. Company Matching Contributions shall be paid monthly to the Trustee by
the Participating Employers. For purposes of this Section 4.02, the term
"Compensation" shall have the respective meanings set forth in Section 4.01(f).
(b) Rate of Company Matching Contributions for Participants Who
Are Former Employees of Wilson Jones Company. The thirty percent (30%) referred
to in Section 4.02(a) above for Participants employed by an ACCO Participating
Employer shall be equal to eighty percent (80%) for all persons who had been
employees of Wilson Jones Company who:
(1) had attained age fifty (50), but not age fifty-five
(55), on January 1, 1985, and whose Compensation (plus any elective
salary reduction amounts under Sections 401(k) or 125 of the Code) was
less than twenty-five thousand dollars ($25,000) on that date; and
(2) have not incurred a Severance From Service from Wilson
Jones Company or its successor since August 1, 1985.
(c) Eligibility for Allocation. Each Participant who is an
Employee of American or an ACCO Participating Employer, Acushnet
Participating Employer, Day-Timers Participating Employer or
MasterBrand Participating Employer shall be entitled to an allocation
of Company Matching Contributions under this Section 4.02 if he made
Tax Deferred Contributions during the Plan Year.
(d) Limitations. Notwithstanding the foregoing and in addition to
the limitations set forth in Sections 4.06 and 4.07, no Company Matching
Contributions shall be made with respect to excess Tax Deferred Contributions
distributed pursuant to Section 4.05 and Company Matching Contributions made
with respect thereto shall be returned to the Participating Employer pursuant to
Section 14.03.
4.03. Rollover Contributions.
(a) Eligible Amounts. Any Employee, regardless of whether he has
become a Participant in the Plan pursuant to Article II, may, subject to
obtaining the prior approval of his Participating Employer, at any time transfer
(or cause to be transferred) to the Trust Fund:
(1) Up to the entire amount of money and other property
received from another qualified trust under Section 401(a) of the Code
which constitutes an eligible rollover distribution within the meaning
of Section 402(c)(4) of the Code, provided that (A) such amount must
be received by the Trustee within sixty (60) days after the Employee's
receipt of such payment or (B) such amount is directly transferred to
the Trust Fund from such other qualified trust; and
(2) Up to the entire amount of money and other property
received by the Employee that was in an "individual retirement
account" or an "individual retirement annuity" (as defined in Section
408 of the Code) which contains only those amounts described above in
paragraph (1) plus any earnings thereon, provided that such amount
must be received by the Trustee within sixty (60) days after the
Employee's receipt of such payment.
After-tax contributions are not eligible to be rolled over to this Plan. The
Employee shall furnish his Participating Employer with a written statement that
the contribution to the Trust Fund is a rollover contribution, together with
such other statements and information as may be required by his Participating
Employer in order to establish that such contribution does not contain amounts
from sources other than provided above and that such rollover contribution
otherwise meets the requirements of law. Acceptance by the Trustee of any amount
under these provisions shall not be construed as a determination of the
Employee's tax consequences by either the Participating Employer or the Trustee.
(b) Limitation on Assets Transferred. Except as otherwise provided
in this Section 4.03, assets shall not be transferred to the Plan or Trust Fund
from any other plan or trust.
4.04. Limitation on Annual Amount of Tax Deferred Contributions.
(a) Maximum Annual Amount. The maximum amount of Tax Deferred
Contributions and, if applicable, Cash Option Contributions which may be made on
behalf of each Participant in any calendar year to this Plan and any other
qualified plan shall not exceed nine thousand two hundred and forty dollars
($9,240), adjusted for each year to take into account any cost of living
increase provided for such year under Section 402(g) of the Code. For purposes
of this Section 4.04, the term "qualified plan" means any tax qualified plan
under Section 401(k) of the Code, any simplified employee pension cash or
deferred arrangement as described in Section 402(h)(1)(B) of the Code, any
eligible deferred compensation plan under Section 457 of the Code, any plan
described in Section 501(c)(18) of the Code and any employer contributions made
on behalf of the Participant for the purchase of an annuity contract under
Section 403(b) of the Code pursuant to a salary reduction arrangement.
(b) Procedure for Requesting Return of Excess Deferrals. If a
Participant makes elective deferrals to this Plan and to any other qualified
plan in excess of the dollar limit specified above for the Participant's taxable
year, then the Participant must notify his Participating Employer in writing by
March 1 of the following year of the amount, if any, to be refunded from this
Plan. The notice must specify the amount of excess Tax Deferred Contributions
and, if applicable, Cash Option Contributions received by the Plan for the
preceding year and must be accompanied by the Participant's written statement
that if the excess is not distributed, the Tax Deferred Contributions and, if
applicable, Cash Option Contributions, when added to amounts deferred under
other qualified plans, exceed the limit imposed on the Participant by Code
Section 402(g) for the taxable year in which the deferral occurred. If the
Participant fails to notify the Committee by March 1, no refund will be made
pursuant to this Section 4.04.
(c) Return of Excess Deferrals. The amount to be refunded shall be
paid to the Participant in a single payment not later than April 15 following
the close of the taxable year and shall include any income or loss allocated to
the refund, as determined in Section 4.04(d), for the period during the
Participant's taxable year. Any Cash Option Contributions shall be returned
before Tax Deferred Contributions. Although the excess deferral may be refunded,
it shall still be considered as an elective deferral for the Plan Year in which
it was originally made and shall be included in the Participant's actual
deferral percentage.
(d) Income or Loss Allocable for Taxable Year. The income or loss
allocable to excess elective deferrals for the Participant's taxable year shall
be determined by multiplying the income or loss for the Participant's taxable
year allocable to the Participant's elective deferrals for such year by a
fraction, the numerator of which is the amount of excess elective deferrals and
Cash Option Contributions for such taxable year and the denominator of which is
equal to the sum of (1) the total Account Balances in the Participant's Tax
Deferred Account and, if applicable, Cash Option Account as of the beginning of
the taxable year plus (2) the Participant's Tax Deferred Contributions and, if
applicable, Cash Option Contributions for such taxable year. No adjustment shall
be made with respect to any period following such taxable year.
4.05. Actual Deferral Percentage Tests.
(a) Tests. The Actual Deferral Percentage for the Highly
Compensated Employees shall not exceed for any Plan Year the greater of:
(1) the Actual Deferral Percentage for all other Employees,
multiplied by one and one-quarter (1.25); or
(2) the Actual Deferral Percentage for all other Employees,
multiplied by two (2); provided, however, the Actual Deferral
Percentage for the Highly Compensated Employees does not exceed the
Actual Deferral Percentage for all other Employees by more than two
(2) percentage points.
For the purpose of the foregoing tests:
(1) those Employees who were not directly or indirectly
eligible to have Tax Deferred Contributions or, if applicable, Cash
Option Contributions made for them at any time during the Plan Year
shall be disregarded;
(2) 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)) of the Code, the cash or
deferred arrangements included in those plans shall be treated as one
arrangement; and
(3) if a Highly Compensated Employee is a participant in two
or more cash or deferred arrangements of the Participating 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) Actual Deferral Percentage. The Actual Deferral Percentage for
a specified group of Employees for a Plan Year shall be the average of the
ratios (calculated separately) for the Employees in such group of:
(1) the amount of Tax Deferred Contributions and, if
applicable, Cash Option Contributions and Special Company
Contributions pursuant to Section 4.08 actually paid to the Trustee on
behalf of each such Employee for such Plan Year, to
(2) his Compensation for such Plan Year.
Every family member of a five percent (5%) owner of a Participating 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 five percent (5%) owner or
Highly Compensated Employee into a single family group ("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 shall be aggregated as one Family Group. The Compensation and Tax
Deferred Contributions and, if applicable, Cash Option 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 Tax Deferred Contributions and,
if applicable, Cash Option Contributions and the Compensation of all members of
the Family Group.
Except as provided in the preceding paragraph, the Tax Deferred
Contributions and, if applicable, Cash Option Contributions and the Compensation
of all members of the Family Group are disregarded in calculating the Actual
Deferral Percentage of the Employees other than Highly Compensated Employees.
(c) Return of Excess Contributions. The Committee shall determine
after the end of the Plan Year whether the Actual Deferral Percentage results
satisfy either of the tests contained in Section 4.05(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 Tax Deferred
Contributions and, if applicable, Cash Option 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 Section 4.05(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 Section 4.05(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
Section 4.05(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 Section 4.05(a), this process
is repeated until sufficient total reductions have occurred to achieve
compliance with the tests contained in Section 4.05(a).
If a Highly Compensated Employee's actual deferral ratio is
determined under the family aggregation rules described above, the Family
Group's excess Tax Deferred Contributions and, if applicable, Cash Option
Contributions shall be allocated among the members of the Family Group in
proportion to each member's Tax Deferred Contributions and, if applicable, Cash
Option Contributions on a pro rata basis.
The amount of excess Tax Deferred Contributions and, if
applicable, Cash Option 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 Tax Deferred Contributions
and Cash Option Contributions previously distributed for the Plan Year beginning
in the taxable year.
(d) Adjustment for Income or Losses. The excess Elective
Contributions for each Highly Compensated Employee shall be adjusted for income
or loss during the Plan Year, in the manner prescribed in Section 4.04(d).
(e) Forfeiture of Company Matching Contributions. Tax Deferred
Contributions which are refunded shall cause the corresponding Company Matching
Contributions, whether vested or nonvested, to be forfeited.
(f) Definition of Compensation. For purposes of this Section 4.05,
the term "Compensation" shall have the meaning prescribed in Section 414(s) of
the Code.
4.06. Actual Contribution Percentage Tests.
(a) Tests. The Actual Contribution Percentage for the Highly
Compensated Employees shall not exceed for any Plan Year the greater of:
(1) the Actual Contribution Percentage for all other
Employees, multiplied by one and one-quarter (1.25); or
(2) the Actual Contribution Percentage for all other
Employees, multiplied by two (2); provided, however, the actual
contribution percentage for the Highly Compensated Employees does not
exceed the Actual Contribution Percentage for all other Employees by
more than two percentage points.
For the purpose of the foregoing tests:
(1) those Employees who were not directly or indirectly
eligible to have Company Matching Contributions made for them at any
time during the Plan Year shall be disregarded;
(2) if two or more plans to which employee contributions and
matching contributions are made are considered one plan for purposes
of Section 401(a)(4) or 410(b) (other than 410(b)(2)(A)(ii)) of the
Code, all employee contributions and matching contributions are to be
treated as made under the same plan;
(3) 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 410(b) of the Code as though they were
one plan; and
(4) 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.
(b) Actual Contribution Percentage. The Actual Contribution
Percentage for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately) for the Employees in such group
of:
(1) the amount of Company Matching Contributions actually
paid to the Trustee on behalf of each such Employee for such Plan
Year, to
(2) his Compensation for the Plan Year.
To the extent permitted by Treasury Regulations, Tax Deferred
Contributions, Cash Option Contributions and non-elective employer contributions
under any other tax-qualified retirement plan may be added to (1) above.
The Company Matching Contributions, other amounts added to (1)
above, and Compensation of each member of a Family Group (as determined in
Section 4.05(b)) 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 Company Matching Contributions,
other added amounts, and Compensation of all members of the Family Group.
Except as provided in the preceding paragraph, the Company
Matching Contributions, other added amounts, and Compensation of all members of
the Family Group are disregarded in calculating the Actual Contribution
Percentage of the Employees other than Highly Compensated Employees.
(c) Return of Excess Contributions. The Company shall determine
after the end of the Plan Year whether the Actual Contribution Percentage
results satisfy either of the tests contained in Section 4.06(a). 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 Section 4.06(a),
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 Section 4.04(a)
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 Section 4.06(a) 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 Section 4.06(a), this process is repeated until sufficient
total reductions have occurred to achieve compliance with the tests contained in
Section 4.06(a).
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 Company Matching Contributions.
(d) Adjustment for Income and Loss. The Excess Aggregate
Contributions for each Highly Compensated Employee shall be adjusted for income
or loss during the Plan Year, in the manner prescribed in Section 4.04(d).
(e) Definition of Compensation. For purposes of this Section 4.06,
the term "Compensation" shall have the meaning prescribed in Section 414(s) of
the Code.
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 Employees multiplied by
one hundred twenty-five percent (l25%) and the Actual Contribution Percentage
for Highly Compensated Employees for the same Plan Year is more than the Actual
Contribution Percentage for all other Employees multiplied by one hundred
twenty-five percent (l25%), 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) one hundred twenty-five percent (125%) of the
greater of (A) the Actual Deferral Percentage of the group of
all other Employees, or (B) the Actual Contribution Percentage
of the group of all other Employees, and
(2) two (2) percentage points plus the lesser of (A)
the Actual Deferral Percentage of the group of all other
Employees, or (B) the Actual Contribution Percentage of the
group of all other Employees.
In no event, however, shall the amount described in this
subparagraph 4.07(a)(2) exceed two hundred percent (200%) of
the lesser of (2)(A) and (B) above; and
(b) the sum of:
(1) one hundred twenty-five percent (125%) of the
lesser of (A) the Actual Deferral Percentage of the group of
all other Employees, or (B) the Actual Contribution Percentage
of the group of all other Employees, and
(2) two (2) percentage points plus the greater of (A)
the Actual Deferral Percentage of the group of all other
Employees, or (B) the Actual Contribution Percentage of the
group of all other Employees.
In no event, however, shall the amount described in this
subparagraph 4.07(b)(2) exceed two hundred percent (200%) of
the lesser of (2)(A) and (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 Section 4.07, the
Actual Deferral Percentage for the Highly Compensated Employees or the Actual
Contribution Percentage for the Highly Compensated Employees shall be reduced in
the manner provided in Sections 4.05 and 4.06, until such excess no longer
exists.
4.08. Special Company Contributions.
(a) Determination of Special Rate. In order to meet the
nondiscrimination requirements of Sections 401(k) and 401(m) of the Code (as set
forth in Sections 4.05 and 4.06 of the Plan), any Participating Employer may, in
its discretion and by action of its board of directors, establish a special rate
of employer contributions applicable only to certain Participants who are not
Highly Compensated Employees of such Participating Employer.
(b) Allocation of Special Company Contributions. If contributions
made under this Section 4.08 are made to meet the nondiscrimination requirements
of Code Section 401(k) (as set forth in Section 4.05 of the Plan), then such
contributions shall be deemed, for all Plan purposes except Section 9.01, to be
Tax Deferred Contributions, and shall be allocated to the Tax Deferred Accounts
of the Participants for whom the contributions were made; provided, however,
that Company Matching Contributions shall not be made based upon such
contributions. If contributions made under this Section 4.08 are made to meet
the nondiscrimination requirements of Code Section 401(m) (as set forth in
Section 4.06 of the Plan), then such contributions shall be deemed, for all Plan
purposes except Section 9.01, to be Company Matching Contributions, but shall be
allocated to the Tax Deferred Accounts of the Participants for whom the
contributions were made employed by such Participating Employer who made Tax
Deferred Contributions and such contributions shall be fully vested upon
deposit.
4.09. MasterBrand Cash Advance. A MasterBrand Participating
Employer may make a Cash Advance to the Plan to enable a Participant to obtain a
distribution under Articles VIII and IX of the vested amount of the
Participant's Accounts invested in the Frozen Mutual Benefit GIC Fund; provided,
however, that such Cash Advance shall be limited so that the sum of the Cash
Advances used to fund any such distribution plus all other annual additions
credited to the Participant's Account (including any previous Cash Advances) for
that Plan Year, do not exceed the contribution limits in Section 415 of the
Code. Each Cash Advance shall be in the form of a non-collateralized,
non-interest bearing loan to the Plan for which the Participating Employer shall
have no recourse against Plan assets, except to the extent provided below, and
for which the Plan shall bear no expense or risk. Upon the receipt of cash
proceeds from the Mutual Benefit Life Insurance Company guaranteed interest
contract in which the Investment Fund is invested of amounts attributable to the
vested amount of the Participant's Accounts invested in the Frozen Mutual
Benefit GIC Fund for which a Cash Advance was made to enable a Participant to
receive a distribution of such amounts under Articles VIII and IX, the Cash
Advance shall be repaid, without interest, to the Participating Employer who
made such Cash Advance; provided, however, that repayment of the Cash Advances
shall be waived to the extent that the cash proceeds received from the Mutual
Benefit Life Insurance Company guaranteed interest contract in which the
Investment Fund is invested are less than the amount of the Cash Advances.
ARTICLE V
INVESTMENT PROVISIONS
5.01. Investment Funds.
(a) Separate Funds. The Trust Fund shall consist of the following
separate Investment Funds, to be administered as provided in Sections 5.03
through 5.14, respectively, and the "Loan Fund," to be administered as provided
in Article X:
(1) American Stock Fund;
(2) S&P 500 Index Fund;
(3) Value Equity Fund;
(4) Large-Cap Growth Equity Fund;
(5) Small-Cap Growth Equity Fund;
(6) International Equity Fund;
(7) Growth-Oriented Diversified Fund;
(8) Value-Oriented Diversified Fund;
(9) Government Securities Fund;
(10) Corporate/Government Bond Fund;
(11) Short-Term Investment Fund; and
(12) Frozen Fixed Fund.
(b) Assets Pending Allocation, Investment in Investment Funds and
Maturity and Redemption. Contributions to the Plan may be uninvested pending
allocation to the Investment Funds. The Investment Manager of each Investment
Fund, or the Trustee if there shall be no Investment Manager, may invest the
Investment Fund in short-term investments or hold the assets thereof uninvested
pending orderly investment and to permit distributions, reallocations and
transfers therefrom.
5.02. Investment Fund Elections. A Participant's Account Balances
and contributions allocable to a Participant's Accounts shall be invested in the
Investment Funds as follows:
(a) Initial Investment of Contributions. Except as provided in
Section 5.02(e), each Participant may elect that the Profit-Sharing
Contributions, Cash Option Contributions, Tax Deferred Contributions, Company
Matching Contributions and Rollover Contributions allocable to his Accounts
after January 1, 1996 be invested, collectively with investment gains and losses
allocated on a pro rata basis, in whole increments of one percent (1%), in any
one or more of the Investment Funds. The same investment election shall apply to
a Participant's Tax Deferred Contributions, Company Matching Contributions and
Rollover Contributions. A separate investment election may apply to the
Profit-Sharing Contributions and Cash Option Contributions allocable to a
Participant's Profit-Sharing Account and Cash Option Account.
(b) Change in Investment of New Contributions. Effective as of the
first day of any month, each Participant may elect to change his investment
elections with respect to new contributions allocable to his Accounts, in
accordance with Section 5.02(a).
(c) Interfund Transfers. Except as otherwise provided in Section
5.02(e), effective as of the first day of any month, each Participant may elect
that all or any portion of his Account Balances be transferred, in whole
percentage increments of the total balance, from any one or more of the
Investment Funds in which such Account Balances are invested to any one or more
of the Investment Funds. Any amount transferred pursuant to this Section 5.02(c)
shall be valued as of the Valuation Date next preceding the effective date of
the transfer.
(d) Investment Upon Maturity, Purchase or Redemption. Account
Balances attributable to assets held in guaranteed income contracts shall, upon
maturity, purchase or redemption, be invested in accordance with the investment
elections of each Participant in effect as of the Valuation Date next succeeding
the date of maturity, purchase or redemption.
(e) Limitations on Investments. Notwithstanding the foregoing, no
contributions may be invested in the Frozen Fixed Fund, no transfers may be made
into the Frozen Fixed Fund and any transfers from the Frozen Fixed Fund shall be
made in accordance with the provisions of the respective guaranteed income
contracts in which such Investment Fund is invested; provided further that any
transfers from the Frozen Mutual Benefit GIC Fund, a subfund of the Frozen Fixed
Fund, shall be limited to the amount that can be withdrawn from the Mutual
Benefit Life Insurance Company guaranteed income contract in which the
Investment Fund is invested. The foregoing shall be subject to such additional
limitations and restrictions as the Committee may, from time to time, establish
and as may be set forth in any guaranteed income contract in which the Frozen
Fixed Fund is invested.
(f) Notice Requirement. Each Participant shall make an election
pursuant to Section 5.02(a), (b) or (c) with his Participating Employer within a
period prior to the effective date of such election as may be specified by the
Committee. Any investment election made pursuant to Section 5.02(a), (b) or (c)
shall be made in accordance with the voice response system implemented by the
Participant's Participating Employer or, if required by such Participating
Employer, by filing an investment election with such Participating Employer, on
a form approved by the Committee. Any investment election made pursuant to
Section 5.02(a) or (b) shall remain in effect until superseded by a subsequent
investment election.
(g) Investment in Absence of Election. If a Participant fails to
make an investment election in accordance with Section 5.02(a), the
contributions referred to in Section 5.02(a) shall be invested in the Short-Term
Investment Fund, provided that any investment election under a Prior Plan shall
remain in effect unless changed.
5.03. Administration of American Stock Fund. Subject to the
provisions of the Trust Agreement and Sections 5.15 through 5.17, the Trustee
shall administer the American Stock Fund as follows: (a) Investment. The assets
of the American Stock Fund, including all income thereon and increments thereto,
shall be invested primarily 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) Registration Upon Distribution. Upon any distribution from the
American Stock Fund as a single distribution pursuant to Section 8.01(a)(2), 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.
(c) Distributions Other Than in Stock. Upon any distribution from
the American Stock Fund pursuant to the provisions of Article VIII other than as
a single distribution pursuant to Section 8.01(a)(2), 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
succeeding the event entitling the distributee thereto (or, if the event
coincides with a Valuation Date, then on that Valuation Date).
(d) Transfers Among Investment Funds. Upon any transfer from any
Investment Fund pursuant to the provisions of Section 5.02(c), the Trustee
shall, to the extent practicable, retain all shares which would otherwise have
to be liquidated by reason of such transfer and transfer in lieu thereof their
Fair Market Value on the Valuation Date next preceding the date as of which such
transfer is to be made.
(e) Rights Exercise; Sale of Stock. To the extent practicable, the
Trustee shall exercise all rights to buy American Common Stock (other than
rights within the meaning of Section 5.17, which shall be exercised only in
accordance with Section 5.17) 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 determined as provided in Article I. The Trustee may also 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).
5.04. Investment of S&P 500 Index Fund. Subject to the provisions
of the Trust Agreement and of Section 5.03(e), the assets of the S&P 500 Index
Fund, including all income thereon and increments thereto, shall be invested and
reinvested in a mutual fund that invests in five hundred (500) stocks that make
up the S&P 500 proportionately to each stock weighting in the index, as selected
by the Executive Committee of the Board of Directors.
5.05. Investment of Value Equity Fund. Subject to the provisions
of the Trust Agreement and of Section 5.03(e), the assets of the Value Equity
Fund, including all income thereon and increments thereto, shall be invested and
reinvested in any and all common stocks, preferred stocks and other equity
securities which the Investment Manager believes have a low price relative to
the company's earnings or cash flow, or relative to the past price history of
the stock, as shall be selected by the Investment Manager or, if there shall be
no such Investment Manager, by the Trustee; provided, however, that the
Executive Committee of the Board of Directors may determine that the Value
Equity Fund be comprised of a mutual fund having substantially the foregoing
characteristics.
5.06. Investment of Large-Cap Growth Equity Fund. Subject to the
provisions of the Trust Agreement and of Section 5.03(e), the assets of the
Large-Cap Growth Equity Fund, including all income thereon and increments
thereto, shall be invested and reinvested primarily in stocks of medium to
large-size companies with above-average earnings or sales growth, as selected by
the Investment Manager or, if there shall be no such Investment Manager, by the
Trustee; provided, however, that the Executive Committee of the Board of
Directors may determine that the Large-Cap Growth Equity Fund be comprised of a
mutual fund having substantially the foregoing characteristics.
5.07. Investment of Small-Cap Growth Equity Fund. Subject to the
provisions of the Trust Agreement and of Section 5.03(e), the assets of the
Small-Cap Growth Equity Fund, including all income thereon and increments
thereto, shall be invested and reinvested primarily in small to medium-size
companies that are early in their life cycle but which have the potential to
become major enterprises (emerging growth companies), as selected by the
Investment Manager or, if there shall be no such Investment Manager, by the
Trustee; provided, however, that the Executive Committee of the Board of
Directors may determine that the Small-Cap Growth Equity Fund be comprised of a
mutual fund having substantially the foregoing characteristics.
5.08. Investment of International Equity Fund. Subject to the
provisions of the Trust Agreement and of Section 5.03(e), the assets of the
International Equity Fund, including all income thereon and increments thereto,
shall be invested and reinvested primarily in stocks of companies incorporated
outside the United States, as selected by the Investment Manager or, if there
shall be no such Investment Manager, by the Trustee; provided, however, that the
Executive Committee of the Board of Directors may determine that the
International Equity Fund be comprised of a mutual fund having substantially the
foregoing characteristics.
5.09. Investment of Growth-Oriented Diversified Fund. Subject to
the provisions of the Trust Agreement and of Section 5.03(e), the assets of the
Growth-Oriented Diversified Fund, including all income thereon and increments
thereto, shall be invested and reinvested in such bonds, debentures, notes,
equipment trust certificates, investment trust certificates, preferred stocks,
common stocks, other securities (including any bonds, debentures, stock and
other securities of American) primarily of companies with strong financial
characteristics and good long-term prospects for above-average earnings or sales
growth, or other properties, not necessarily of the nature hereinbefore
itemized, as shall be selected by the Investment Manager or, if there shall be
no such Investment Manager, by the Trustee; provided, however, that the
Executive Committee of the Board of Directors may determine that the
Growth-Oriented Diversified Fund be comprised of a mutual fund having
substantially the foregoing characteristics.
5.10. Investment of Value-Oriented Diversified Fund. Subject to
the provisions of the Trust Agreement and of Section 5.03(e), the assets of the
Value-Oriented Diversified Fund, including all income thereon and increments
thereto, shall be invested and reinvested primarily in companies which have a
low price relative to the company's earnings or cash flow, or relative to the
past price history of the stock, as selected by the Investment Manager or, if
there shall be no such Investment Manager, by the Trustee; provided, however,
that the Executive Committee of the Board of Directors may determine that the
Value-Oriented Diversified Fund be comprised of a mutual fund having
substantially the foregoing characteristics.
5.11. Investment of Government Securities Fund. Subject to the
provisions of the Trust Agreement and of Section 5.03(e), the assets of the
Government Securities Fund, including all income thereon and increments thereto,
shall be invested and reinvested primarily in such obligations issued or
guaranteed by the United States Government or its agencies, or by any State or
local government or their agencies, as shall be selected by the Investment
Manager or, if there shall be no such Investment Manager, by the Trustee;
provided, however, that the Executive Committee of the Board of Directors may
determine that the Government Securities Fund be comprised of a mutual fund
having substantially the foregoing characteristics.
5.12. Investment of Corporate/Government Bond Fund. Subject to the
provisions of the Trust Agreement and of Section 5.03(e), the assets of the
Corporate/Government Bond Fund, including all income thereon and increments
thereto, shall be invested and reinvested primarily in investment grade
corporate bonds, bonds issued by the United States Government or its agencies,
domestic bank obligations and commercial paper, as selected by the Investment
Manager or, if there shall be no such Investment Manager, by the Trustee;
provided, however, that the Executive Committee of the Board of Directors may
determine that the Corporate/Government Bond Fund be comprised of a mutual fund
having substantially the foregoing characteristics.
5.13. Investment of Short-Term Investment Fund. Subject to the
provisions of the Trust Agreement and of Section 5.03(e), the assets of the
Short-Term Investment Fund, including all income thereon and increments thereto,
shall be invested and reinvested in bonds, debentures, mortgages, equipment or
other trust certificates, notes, obligations issued by 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, as shall be selected by the Investment
Manager, or if there shall be no such Investment Manager, by the Trustee (which
may include investment in the Trustee's short-term collective investment fund);
provided, however, that the Executive Committee of the Board of Directors may
determine that the Short-Term Investment Fund be comprised of a mutual fund
having substantially the foregoing characteristics.
5.14. Investment of Frozen Fixed Fund. Subject to the provisions
of the Trust Agreement and of Section 5.03(e), the assets of the Frozen Fixed
Fund, including all income thereon and increments thereto, shall be invested in
guaranteed income contracts acquired prior to 1996 with several insurance
companies and shall consist of one or more subfunds, including the Frozen Mutual
Benefit GIC Fund which is invested in a guaranteed income contract issued by
Mutual Benefit Life Insurance Company.
5.15. Voting of Shares in American Stock Fund.
(a) Trustee Voting. 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 Section
5.15.
(b) Participant Direction. 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 Section 5.15(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
Section 5.15(b). For purposes of this Section 5.15, 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 Accounts 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) Trustee to Communicate Voting Procedures. 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 Participating Employers) 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
Participating Employers 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 Participating Employers and the 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 Section 5.15, the Plan
or the Trust Agreement notwithstanding, except if the Participating Employers
serve as recordkeeper, to the extent necessary to provide the Participating
Employers 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, American, any other
Participating Employer and any Non-Participating Employer and any director,
officer, employee or agent thereof, it being the intent of this Section 5.15
that American, each other Participating Employer, and each Non-Participating
Employer 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) Invalidity. In the event that a court of competent
jurisdiction shall issue an opinion, order or decree which, in the opinion of
counsel to American 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 American, or to American, 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, (1) 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 (2) 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 Participating Employers,
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.
5.16. Tendering of Shares in American Stock Fund.
(a) Tender by Trustee. 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 Section 5.16, shall
include any rights within the meaning of Section 5.17(a)) held in the American
Stock Fund pursuant to any tender offer (as defined herein) except as provided
in this Section 5.16. For purposes of this Section 5.16, 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) Participant Direction. 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 Section 5.16, 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 Section 5.16. In giving
or being deemed to have given directions to the Trustee as provided in this
Section 5.16(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 Section 5.16(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 Section 5.16(b).
(c) Trustee to Communicate Tender Procedures. In the event of a
tender offer as to which Participants, former Participants and Beneficiaries are
entitled to give directions as provided in this Section 5.16, 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
Participating Employers) 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 Participating
Employers 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 Participating Employers and the 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 Section 5.16, the Plan or the Trust Agreement
notwithstanding, except if the Participating Employers serve as recordkeeper, to
the extent necessary to provide the Participating Employers 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, American, any other Participating Employer and
any Non-Participating Employer and any director, officer, employee or agent
thereof, it being the intent of this Section 5.16 that American, each other
Participating Employer and each Non-Participating Employer 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) Invalidity. In the event that a court of competent
jurisdiction shall issue an opinion, order or decree which, in the opinion of
counsel to American 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 American, or to American, 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, (1)
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 (2) 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 Participating Employers, 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 nonfinancial factors as
the Trustee deems appropriate.
(e) Proceeds of Tender. 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 Section
5.16 shall be allocated to his Accounts 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 Section 5.16(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 Section 5.16(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 Committee shall take or cause to
be taken all such action so that (1) such proceeds (and any income or proceeds
therefrom) shall be segregated and held by the Trustee in one or more separate
Investment Funds and (2) 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 Section 5.13 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.
5.17. Exercise of Certain Rights Held in American Stock Fund.
(a) Trustee Exercise of Preferred Share Purchase Rights.
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 Section 5.17;
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 Section 5.16 and not by the provisions of this Section 5.17; 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) Participant Direction. 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
Section 5.17. 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 Section 5.17(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 Section 5.17(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) Trustee to Communicate Exercise Procedures. 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 Section 5.17 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 Participating Employers) that are being distributed to holders of
such rights and either are directed generally to such holders or relate to such
rights, and the Participating Employers 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 Participating Employers and the 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 Section 5.17, the Plan or
the Trust Agreement notwithstanding, except if the Participating Employers serve
as recordkeeper, to the extent necessary to provide the Participating Employers
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, American, any other Participating Employer and
any other Non-Participating Employer and any director, officer, employee or
agent thereof, it being the intent of this Section 5.17 that American, each
other Participating Employer and each other Non-Participating Employer 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) Invalidity. In the event that a court of competent
jurisdiction shall issue an opinion, order or decree which, in the opinion of
counsel to American 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 American, or to
American, 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, (1) 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 (2) 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 Participating Employers, 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) Funds for Exercise of Preferred Share Purchase Rights. 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) Allocation of Proceeds. 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 Section 5.17 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 Section
5.17(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 Section 5.17(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 Committee shall take or cause to
be taken all such action so that (1) such proceeds and any income or proceeds
therefrom shall be segregated and held by the Trustee in one or more separate
Investment Funds and (2) 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 Funds 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 Section 5.13 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.
5.18. Valuation of Investment Funds. As of each Valuation Date,
the Trustee shall report to the Committee the Fair Market Value of the assets of
each Investment Fund as of such Valuation Date. The Fair Market Value of an
Investment Fund shall be the value of such Investment Fund as of such Valuation
Date.
ARTICLE VI
ACCOUNTS
6.01. Participants' Accounts. The Committee shall maintain or
cause to be maintained the following separate Accounts for each Participant
(and, as long as may be appropriate, for each former Participant and
Beneficiary):
(a) Profit-Sharing Account. A Profit-Sharing Account shall be
maintained for each Participant on whose behalf Profit-Sharing Contributions are
made pursuant to Article III of this Plan or on whose behalf profit-sharing
contributions were made under a Prior Plan, and, subject to the following
limitations, such contributions and any earnings and losses thereon shall be
allocated to such Profit-Sharing Account:
(1) Any amounts maintained in the Profit-Sharing Account of a
Participant attributable to profit-sharing contributions made under the
Profit-Sharing Plan of American Brands, Inc. or the Profit-Sharing and
401(k) Savings Plan of Jim Beam Brands Co. shall be limited to the
portion of such profit-sharing contributions that were allocated to
such Participant's General Account under such Prior Plans, and any
earnings and losses thereon; and
(2) Any amounts maintained in the Profit-Sharing Account of a
Participant attributable to Profit-Sharing Contributions made pursuant
to Section 3.02 of this Plan or under the ACCO World Corporation
Profit-Sharing Plan shall be limited to the portion of such
profit-sharing contributions that such Participant does not or did not
have the option to receive in cash, and any earnings and losses
thereon.
(b) Cash Option Account. A Cash Option Account shall be maintained
for each Participant on whose behalf Profit-Sharing Contributions are made
pursuant to Section 3.02 of this Plan or on whose behalf profit-sharing
contributions were made under the ACCO World Corporation Profit-Sharing Plan,
which such Participant could have elected, but did not elect, to receive in
cash, and such contributions and any earnings and losses thereon shall be
allocated to such Cash Option Account.
(c) Tax Deferred Account. A Tax Deferred Account shall be
maintained for each Participant on whose behalf Tax Deferred Contributions are
made pursuant to Section 4.01 of this Plan and on whose behalf any tax deferred
contributions were made under a Prior Plan, and such contributions and any
earnings and losses thereon shall be allocated to such Tax Deferred Account.
(d) Company Matching Account. A Company Matching Account shall be
maintained for each Participant on whose behalf Company Matching Contributions
are made pursuant to Section 4.02 of this Plan and on whose behalf any company
matching contributions were made under a Prior Plan, except the Acushnet Company
Employee Savings Plan, and such contributions and any earnings and losses
thereon shall be allocated to such Company Matching Account.
(e) Rollover Account. A Rollover Account shall be maintained for
each Participant on whose behalf any amount has been rolled over to this Plan
pursuant to Section 4.03 of this Plan and, except as otherwise specified in this
Section 6.01, on whose behalf any amount has been transferred or rolled over to
a Prior Plan, and such amounts and any earnings and losses thereon shall be
allocated to such Rollover Account.
(f) Withdrawal Account. A Withdrawal Account shall be maintained
for each Participant on whose behalf profit-sharing contributions were made to a
Withdrawal Account under the Profit-Sharing Plan of American Brands, Inc. or the
Profit-Sharing and 401(k) Savings Plan of Jim Beam Brands Co., and such
contributions and any earnings and losses thereon shall be allocated to such
Withdrawal Account.
(g) Deposit Account. A Deposit Account shall be maintained for
each Participant on whose behalf after-tax contributions were made under the
Profit-Sharing Plan of American Brands, Inc. or the Profit-Sharing and 401(k)
Savings Plan of Jim Beam Brands Co., and such contributions and any earnings and
losses thereon shall be allocated to such Deposit Account.
(h) Post-Tax Transfer Contribution Account. A Post-Tax Transfer
Contribution Account shall be maintained for each Participant on whose behalf
after-tax transfer contributions were made under the Profit-Sharing Plan of
American Brands, Inc. or the Profit-Sharing and 401(k) Savings Plan of Jim Beam
Brands Co., and such contributions and any earnings and losses thereon shall be
allocated to such Post-Tax Transfer Contribution Account.
(i) ACCO After-Tax Account. An ACCO After-Tax Account shall be
maintained for each Participant on whose behalf after-tax contributions were
made under the Wilson Jones Company Star Plan prior to January 1, 1987 or under
the ACCO World Corporation Profit-Sharing Plan prior to October 1, 1989, and
such contributions and any earnings and losses thereon shall be allocated to
such ACCO After-Tax Account.
(j) Kensington Money Purchase Account. A Kensington Money Purchase
Account shall be maintained for each Participant on whose behalf amounts were
transferred to the ACCO World Corporation Profit-Sharing Plan from the
Kensington Microware Limited Pension Plan and Trust and such amounts and any
earnings and losses thereon shall be allocated to the Kensington Money Purchase
Account.
(k) ACCO Rollover Account. An ACCO Rollover Account shall be
maintained for each Participant on whose behalf amounts were rolled over to the
ACCO World Corporation Profit-Sharing Plan prior to January 1, 1996, and such
amounts and any earnings and losses thereon shall be allocated to the ACCO
Rollover Account.
(l) Acushnet Company Contribution Account. An Acushnet Company
Contribution Account shall be maintained for each Participant on whose behalf
company matching contributions were made under the Acushnet Company Employee
Savings Plan prior to January 1, 1996, including company contributions under the
Foot-Joy, Inc. Voluntary Investment Plan, and such contributions and any
earnings and losses thereon shall be allocated to such Acushnet Company
Contribution Account.
(m) Acushnet Employee Savings Account. An Acushnet Employee
Savings Account shall be maintained for each Participant on whose behalf
employee savings contributions were made under the Acushnet Company Employee
Savings Plan prior to January 1, 1984 and/or on whose behalf after-tax
contributions were made under the Foot-Joy, Inc. Voluntary Investment Plan, and
such contributions and any earnings and losses thereon shall be allocated to
such Acushnet Employee Savings Account.
(n) Acushnet Rollover Contribution Account. An Acushnet Rollover
Contribution Account shall be maintained for each Participant on whose behalf
amounts were rolled over to the Acushnet Company Employee Savings Plan, and such
amounts and any earnings and losses thereon shall be allocated to such Acushnet
Rollover Contribution Account.
(o) Transferred General Mills Plan Account. A Transferred General
Mills Plan Account shall be maintained for each Participant on whose behalf the
amounts were held under the Acushnet Company Employee Savings Plan, including
amounts held under the Foot-Joy, Inc. Voluntary Investment Plan attributable to
amounts transferred thereto from the Voluntary Investment Plan of General Mills,
Inc. and the General Mills, Inc. Employee Stock Ownership Plan. Separate
sub-accounts shall be maintained within the Transferred General Mills Plan
Account to reflect (1) participant contributions to the Voluntary Investment
Plan of General Mills, Inc., (2) company contributions to the Voluntary
Investment Plan of General Mills, Inc. and (3) amounts transferred from the
General Mills, Inc. Employee Stock Ownership Plan. Such amounts and earnings and
losses thereon shall be allocated to such Transferred General Mills Plan
Account.
(p) Acushnet Tax Deductible Account. An Acushnet Tax Deductible
Account shall be maintained for each Participant on whose behalf amounts were
held under the Acushnet Company Employee Savings Plan, including amounts held
under the Foot-Joy, Inc. Voluntary Investment Plan attributable to contributions
permitted to an employee under the provisions of the Economic Recovery Act of
1981 which may be deducted from the employee's income. Such amounts and earnings
and losses thereon shall be allocated to such Acushnet Tax Deductible Account.
(q) Supplemental Contribution Account. An Employee Savings Account
shall be maintained for each Participant on whose behalf after-tax contributions
were made under the Day-Timers, Inc. Profit-Sharing and Employee Savings Plan or
the MasterBrand Industries, Inc. Employee Savings Plan, and such contributions
and any earnings and losses thereon shall be allocated to such Supplemental
Contribution Account.
6.02. Allocation of Earnings and Losses to Accounts. Earnings and
losses shall be allocated to the Accounts of all Participants as of each
Valuation Date by credit or deduction therefrom, as the case may be, of the
increase or decrease in the value of the Investment Funds in which such Accounts
are invested since the immediately preceding Valuation Date attributable to
interest, dividends, changes in market value, expenses and gains and losses
realized from the sale of assets.
6.03. Allocation of Contributions to Accounts. As of each
Valuation Date, Tax Deferred Contributions, Cash Option Contributions, Company
Matching Contributions, Profit-Sharing Contributions (not otherwise allocable to
Cash Option Accounts) and Rollover Contributions made to the Plan during the
period then ended by or on behalf of each Participant shall be credited to such
Participant's Tax Deferred Account, Cash Option Account, Company Matching
Account, Profit-Sharing Account and Rollover Account, respectively.
6.04. Annual Additions Limitation.
(a) Maximum Annual Additions. The sum of the Annual Additions (as
defined in Section 6.04(c)) to a Participant's Accounts in any Plan Year shall
not exceed the lesser of:
(1) Thirty thousand dollars ($30,000) or, if greater,
one-quarter (1/4) of the dollar limitation in effect under Section
415(b)(1)(A) of the Code; or
(2) Twenty-five percent (25%) of the Participant's
Compensation (as defined for this purpose in Section 6.06).
The limitations set forth in (1) and (2) above shall be adjusted annually for
increases in the cost of living, in accordance with regulations issued by the
Secretary of the Treasury pursuant to the provisions of Section 415(d) of the
Code (or such other Federal income tax statutory provisions as shall at the time
be applicable).
(b) Procedure for Preventing Excess Annual Additions. In the event
that the Annual Additions to a Participant's Accounts in any Plan Year would be
in excess of the maximum annual limits as a result of the allocation of
Forfeitures, a reasonable error in estimating Compensation, a reasonable error
in determining the amount of elective deferrals or under such other facts and
circumstances which the Commissioner of Internal Revenue finds justifiable, the
portion of any Profit-Sharing Contributions, and thereafter any Company Matching
Contributions otherwise allocable to a Participant's Accounts shall be reduced
by the amount necessary to reduce the amount apportionable to a Participant to
the lesser of the amounts set forth in Section 6.04(a)(1) or (2). If after
reducing the portion of any Profit-Sharing Contribution, then any Company
Matching Contributions otherwise allocable to a Participant's Accounts, an
excess still exists, any Tax Deferred Contributions that cause the excess shall
be returned to the Participant.
(c) Definition of Annual Additions. For purposes of this Plan, the
term "Annual Additions" means the amounts allocated to a Participant's Accounts
during the year that constitute:
(1) the Company Matching Contributions and Profit-Sharing
Contributions allocated to such Participant's Accounts.
(2) the Tax Deferred Contributions and Cash Option
Contributions allocated to such Participant's Accounts.
(3) Forfeitures.
(d) Consolidation of Defined Contribution Plans. For purposes of
this Section 6.04, this Plan and any other qualified defined contribution plan
maintained by a Participating Employer or Related Employer shall be considered
as a single defined contribution plan if a Participant is a participant in both
plans. Amounts allocated to a Participant's individual medical benefit account,
as defined in Section 415(l)(1) of the Code, which is part of a defined benefit
plan maintained by a Participating Employer or Related Employer shall be treated
as annual additions to a defined contribution plan. Amounts derived from
contributions which are attributable to post-retirement medical benefits
allocated to the separate account of a Participant who is a key employee, as
defined in Section 419A(d) of the Code, under a welfare benefit fund, as defined
in Section 419(e) of the Code, maintained by a Participating Employer or Related
Employer, shall be treated as annual additions to a defined contribution plan.
Notwithstanding the foregoing, the compensation limit described in Section
6.04(a)(2) shall not apply to any contribution for medical benefits (within the
meaning of Section 419A(f)(2) of the Code) after separation from service which
is otherwise treated as an annual addition under Section 415(l)(1) of the Code.
If a reduction is necessary under Section 6.04(b), then the reduction shall be
made to the Annual Additions under one of such plans as determined by the
Committee and the governing bodies of such other plans.
6.05. Combined Maximum Limitations. In the event any Participant
is also participating in any other qualified plan (within the meaning of Section
401 of the Code) maintained by a Participating Employer or Related Employer,
then for any limitation year, which shall be the Plan Year, the sum of the
"Defined Benefit Plan Fraction" and the "Defined Contribution Plan Fraction" for
such limitation year shall not exceed one (1.0). For purposes of this Section
6.05, such sum shall be determined in accordance with the following:
(a) The "Defined Benefit Plan Fraction" for any year is a
fraction:
(1) the numerator of which is the projected annual benefit of
the Participant under each defined benefit plan (determined as of the
close of the year); and
(2) the denominator of which is the lesser of the maximum
dollar limitation in effect under Section 415(b)(1)(A) of the Code for
such limitation year times one and one-quarter (1.25), or the amount
which may be taken into account under Section 415(b)(1)(B) of the Code
for such limitation year times one and two-fifths (1.4).
(b) The "Defined Contribution Plan Fraction" for any year is a
fraction:
(1) the numerator of which is the sum of the annual additions
to the Participant's account under each defined contribution plan as of
the close of the year; and
(2) the denominator of which is the sum of the lesser of the
following amounts determined for such limitation year and each prior
year of service with the Participating Employer or Related Employer:
(A) the product of one and one-quarter (1.25)
multiplied by the dollar limitation in effect under Section
415(c)(1)(A) of the Code for such limitation year; or
(B) The product of one and two-fifths (1.4)
multiplied by the amount which may be taken into account under
Section 415(c)(1)(B) of the Code for such limitation year.
For purposes of this Section 6.05, all defined benefit or defined
contribution plans shall be treated as one (1) plan by class. In the event the
above limitation would otherwise be exceeded in any limitation year, the
Participant's benefits under the defined benefit plans are to be limited. In the
event any such defined benefit plan fails to provide for such reduction of
benefits, the annual additions under this Plan shall be reduced to the extent
necessary to comply with the above limitation.
If the Plan satisfied the applicable requirements of Section 415
of the Code as in effect for all limitation years beginning before April 1,
1987, an amount shall be subtracted from the numerator of the Defined
Contribution Plan Fraction (not exceeding such numerator), as prescribed by the
Secretary of the Treasury, so that the sum of the Defined Benefit Plan Fraction
and the Defined Contribution Plan Fraction computed under Section 415(e)(1) of
the Code does not exceed one (1).
6.06. Definition of Compensation for Purposes of Sections 6.04 and
6.05. Solely for the purpose of applying the limitations of Sections 6.04 and
6.05, the term "Compensation" shall mean a Participant's earned income, wages,
salaries, fees for professional services and other amounts received for personal
services actually rendered in the course of employment with a Participating
Employer (including, but not limited to, commissions paid salesmen, compensation
for services on the basis of a percentage of profits, tips and bonuses) and
excluding the following:
(a) contributions made by the Participating Employer to a plan of
deferred compensation to the extent that the contributions are not includable in
the gross income of the Participant for the taxable year in which contributed;
(b) any distributions to the Participant from a plan of deferred
compensation (regardless of whether such distributions are includable in the
gross income of the Participant upon distribution), except to the extent an
amount is received by the Participant pursuant to an unfunded nonqualified plan
and is included in the gross income of the Participant;
(c) amounts realized by the Participant upon the exercise of a
nonstatutory stock option, or amounts realized when restricted property held by
the Participant either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture, within the meaning of Section 83 of the Code;
(d) amounts realized by the Participant from the sale, exchange or
other disposition of stock acquired under a stock option which receives special
tax treatment under the Code; and
(e) other amounts which receive special tax benefits.
Compensation for a limitation year is the compensation actually paid or
includable in gross income during such limitation year.
6.07. Limitation of Annual Unadjusted Earnings or Compensation.
For purposes of this Plan, the Unadjusted Earnings or Compensation of a
Participant shall be limited to one hundred and fifty thousand dollars
($150,000) in each Plan Year (adjusted for increases in the cost of living
pursuant to rulings of the Secretary of the Treasury). For purposes of applying
the annual limitation on Unadjusted Earnings or Compensation under Section
401(a)(17) of the Code, the family unit of a Participant who either is a five
percent (5%) owner or is both a Highly Compensated Employee and one of the ten
(10) most Highly Compensated Employees, shall be treated as a single employee
with one Unadjusted Earnings or Compensation and the annual limitation on
Unadjusted Earnings or Compensation shall be allocated among family members. If
as a result of the application of such rules the annual limitation on Unadjusted
Earnings or Compensation is exceeded, then the limitation shall be prorated
among the affected individuals in proportion to each such individual's
Unadjusted Earnings or Compensation prior to the application of such limitation.
For purposes of applying such rules, the term "family unit" shall include only
the spouse of the Participant and any lineal descendants of the Participant who
have not attained age nineteen (19) before the close of the year.
ARTICLE VII
VESTING AND FORFEITURES
7.01. Participant Contributions. A Participant shall at all times
be one hundred percent (100%) vested in his Tax Deferred Account and Rollover
Account and, where applicable, Deposit Account, Post-Tax Transfer Contribution
Account, ACCO After-Tax Account, ACCO Rollover Account, Acushnet Employee
Savings Account, Acushnet Rollover Contribution Account, Transferred General
Mills Plan Account, Acushnet Tax Deductible Account and Supplemental
Contribution Account.
7.02. Employer Contributions.
(a) Vesting Schedule for American. A Participant who is an
Employee of American shall at all times be one hundred percent (100%) vested in
his Company Matching Account and his Withdrawal Account. A Participant who is an
Employee of American shall be one hundred percent (100%) vested in his
Profit-Sharing Account on the first to occur of the following:
(1) his Retirement;
(2) his termination of employment by reason of Disability;
(3) the date of his death;
(4) his attainment of age 65;
(5) his completion of five (5) years of Vesting Service; or
(6) his Termination of Employment Without Fault.
(b) Vesting Schedule for ACCO Participating Employers. A
Participant who is an Employee of an ACCO Participating Employer who terminates
employment on or after January 1, 1996 shall at all times be one hundred percent
(100%) vested in his Company Matching Account, Cash Option Account and
Kensington Money Purchase Account. A Participant who is an Employee of an ACCO
Participating Employer shall be one hundred percent (100%) vested in his
Profit-Sharing Account on the first to occur of the following:
(1) his Retirement;
(2) his termination of employment by reason of Disability;
(3) the date of his death;
(4) his attainment of age 65;
(5) his completion of five (5) years of Vesting Service; or
(6) his Termination of Employment Without Fault.
In addition, a Participant or former Participant who is an Employee of an ACCO
Participating Employer and who terminates employment with all Related Employers
for a reason other than as stated in this Section 7.02(b) shall be vested in the
percentage of the value of his Profit-Sharing Account set forth in the following
table:
Number of Years of Vesting
Vesting Service Percentage
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
(c) Vesting Schedule for Acushnet Participating Employers. A
Participant who is an Employee of an Acushnet Participating Employer and who
terminates employment on or after January 1, 1996 shall at all times be one
hundred percent (100%) vested in his Acushnet Company Contribution Account and
Company Matching Account.
(d) Vesting Schedule for Beam Participating Employers. A
Participant who is an Employee of a Beam Participating Employer shall be one
hundred percent (100%) vested in the Withdrawal Balance (as defined in Section
9.06) in his Withdrawal Account. A Participant who is an Employee of a Beam
Participating Employer shall be one hundred percent (100%) vested in his
Profit-Sharing Account and his Withdrawal Account on the first to occur of the
following:
(1) his Retirement;
(2) his termination of employment by reason of Disability;
(3) the date of his death;
(4) his attainment of age 65;
(5) his completion of seven (7) years of Vesting Service; or
(6) his Termination of Employment Without Fault.
In addition, a Participant or former Participant who is an Employee of a Beam
Participating Employer and who terminates employment with all Related Employers
for a reason other than as stated in this Section 7.02(d) above shall be vested
in the percentage of the value of his Withdrawal Account (other than his
Withdrawal Balance which is 100% vested) and his Profit-Sharing Account set
forth in the following table:
Number of Years of Vesting
Vesting Service Percentage
Less than 3 0%
3 but less than 4 20%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
(e) Vesting Schedule for Day-Timers Participating Employers. A
Participant who is an Employee of a Day-Timers Participating Employer shall be
one hundred percent (100%) vested in his Profit-Sharing Account and his Company
Matching Account on the first to occur of the following:
(1) his Retirement;
(2) his termination of employment by reason of Disability;
(3) the date of his death;
(4) his attainment of age 65;
(5) his completion of five (5) years of Vesting Service; or
(6) his Termination of Employment Without Fault.
In addition, a Participant or former Participant who is an Employee of a
Day-Timers Participating Employer and who terminates employment with all Related
Employers for a reason other than as stated in this Section 7.02(e) above shall
be vested in the percentage of the value of his Profit-Sharing Account and
Company Matching Account set forth in the following table:
Number of Years of Vesting
Vesting Service Percentage
Less than 3 0%
3 but less than 5 50%
5 or more 100%
(f) Vesting Schedule for MasterBrand Participating Employers. A
Participant who is an Employee of a MasterBrand Participating Employer shall at
all times be one hundred percent (100%) vested in his Company Matching Account.
7.03. Vesting in Prior Plan. Notwithstanding any other provision
of this Plan to the contrary, a Participant who participated in a Prior Plan
shall be vested in his Accounts at least to the extent he was vested under such
Prior Plan.
7.04. Amendments to Vesting Schedule. No amendment to the Plan's
vesting schedules shall deprive a Participant of his nonforfeitable rights to
benefits accrued to the date of such amendment. If any vesting schedule of the
Plan is amended, each Participant with at least three years of Vesting 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:
(a) sixty (60) days after the amendment is adopted;
(b) sixty (60) days after the amendment is effective; and
(c) sixty (60) days after the Participant is issued written notice
of the amendment by American.
7.05. Forfeitures. Any Account Balances in a Participant's
Accounts that do not become distributable pursuant to Article VIII shall be
regarded as Forfeitures after a Break in Service of one (1) year. All amounts
forfeited in accordance with this Article VII shall be used to reduce
contributions of the Participant's Participating Employer.
7.06. Reinstatement of Account Balances. If a former Participant
who has received a distribution of less than the full amount of his Account
Balances thereafter becomes a Participant, the Participant may, provided a Break
in Service of five (5) years has not occurred, repay in cash the amount of his
Account Balances which previously had been distributed in accordance with
Article VIII. Upon such repayment, the amount so repaid shall be reinstated as
of the Valuation Date next succeeding or coincident with such repayment and
shall be nonforfeitable. If a Participant or former Participant who has received
a distribution of less than the full amount of his Account Balances resumes
employment prior to incurring a Break in Service of five (5) years, the amount
of the Account Balances that the Participant or former Participant did not
receive shall be reinstated as of the Valuation Date next succeeding or
coincident with his reemployment. If repayment or reinstatement of such amount
is not made as provided herein, the amount of the Participant's Account Balances
previously distributed and the amount that the Participant did not receive
(which shall be regarded as a forfeiture after a Break in Service of one (1)
year) shall be disregarded in the determination of the Participant's Account
Balances. For purposes of Sections 7.05 and 7.06, a "Break in Service" means any
period commencing with the date on which an Employee's Vesting Service is
terminated and continuing for at least twelve (12) consecutive months until
reemployment by a Participating or Related Employer. In the event an Employee is
reemployed by a Participating Employer or Related Employer within the twelve
(12) consecutive month period following Severance From Service, a Break in
Service shall be deemed not to have occurred and the Employee shall be
considered to have been in Service during such period he was not employed. In
the event the Employee is not so reemployed within such twelve (12) consecutive
month period, the Break in Service shall be deemed to have commenced on his
Severance From Service. Notwithstanding the foregoing, any former Participant
who terminated employment under a Prior Plan prior to January 1, 1996 (except a
Participant in the Day-Timers, Inc. Profit-Sharing and Employee Savings Plan)
and who becomes a Participant in this Plan, shall be immediately one hundred
percent (100%) vested in any unvested Account Balances attributable to company
matching contributions at the time of his termination of employment.
ARTICLE VIII
DISTRIBUTIONS
8.01. Form of Payment.
(a) Payment Forms. Except as otherwise set forth in Section 8.03,
the vested percentage of the Participant's Account Balances shall be distributed
to or for the benefit of the Participant or his Beneficiary, as of the payment
dates specified in Section 8.02 and in such one or more of the following forms
of settlement as the Participant or his Beneficiary shall elect:
(1) By a single distribution in cash;
(2) By a single distribution in whole shares of American
Common Stock to the extent that the portion of such Participant's
Account Balances allocated to the American Stock Fund is evenly
divisible by the fair market value of such stock on the Valuation Date
as of which such Account Balances are determined and the remainder of
such Participant's Account Balances in cash; or
(3) By periodic installments in cash during a period not to
exceed the life expectancy of the Participant or former Participant or
the joint life expectancy of the Participant or former Participant and
his designated Beneficiary determined at the date of commencement of
distribution.
(b) Conversion From Periodic Installments to Lump Sum. If a
Participant, former Participant or his Beneficiary is receiving periodic
installments or is entitled to a deferred distribution pursuant to Section 8.02,
the Participating Employer shall upon the request of such Participant, former
Participant or Beneficiary direct that all of the Account Balances as of the
Valuation Date next succeeding the Committee's approval of the request (or if
the date of approval coincides with a Valuation Date, then as of that Valuation
Date), less any periodic installments paid since such Valuation Date, shall be
distributed in a single distribution or otherwise applied for the benefit of
such Participant, former Participant or Beneficiary. Except as otherwise
provided in Article IX, a Participant, former Participant or his Beneficiary who
is receiving periodic installments or is entitled to a deferred distribution
pursuant to Section 8.02 may not receive a partial single sum distribution of
his Account Balances.
(c) Allocation of Earnings and Losses. So long as a Participant,
former Participant or his Beneficiary is receiving periodic installments
pursuant to Section 8.01(a)(3) or is entitled to a deferred distribution
pursuant to Section 8.02, such Participant, former Participant or his
Beneficiary shall continue to share proportionately in the net income or losses
of the Investment Funds but shall not share in any contributions of a
Participating Employer for any Plan Year after the Participant becomes a former
Participant other than the contribution for his last year of participation if
otherwise eligible therefor.
(d) Lump Sum Payment of Amounts of $3,500 or Less. Notwithstanding
the foregoing, if the vested value of the Participant's Account Balances has not
at any time exceeded three thousand five hundred dollars ($3,500), payment shall
be made as soon as practicable in a single distribution in cash.
(e) Reduction of Account Balances and Investment Funds From
Periodic Installments. Payments made in periodic installments pursuant to
Section 8.01(a)(3), shall be withdrawn from a Participant's Account Balances
first from amounts attributable to after-tax contributions and any earnings
thereon and then from his remaining Account Balances on a pro rata basis.
Payments in periodic installments made pursuant to Section 8.01(a)(3) shall be
withdrawn from the Investment Funds in which such Participant's Account Balances
are invested on a pro rata basis.
8.02. Time of Payment.
(a) Distribution Upon Termination of Employment. Subject to
Section 8.02(c) below, in the event that a Participant who is Employee of an
Acushnet Participating Employer or MasterBrand Participating Employer terminates
employment (whether by reason of Retirement, Disability, Termination of
Employment Without Fault, death or other reason), if elected by the Participant
or his Beneficiary, the Participant's vested Account Balances determined as of
the Valuation Date next succeeding or coincident with such termination of
employment shall be distributed to or applied for the benefit of such
Participant, former Participant or his Beneficiary in one of the forms of
payment specified in Section 8.01 or, where applicable, Section 8.03. Subject to
Section 8.02(c) below, in the event that a Participant who is an Employee of
American or an ACCO Participating Employer, Beam Participating Employer or
Day-Timers Participating Employer terminates employment (whether by reason of
Retirement, Disability, Termination of Employment Without Fault, death or other
reason), such Participating Employer shall distribute the vested Account
Balances (valued as of the Valuation Date next succeeding or coincident with a
Participant's or Beneficiary's termination of employment) of a Participant or
his Beneficiary as soon as practicable following such Participant's or
Beneficiary's termination of employment and shall thereafter distribute any
Profit-Sharing Contribution of such Participating Employer allocated after such
date of distribution in a single distribution in cash as soon as practicable
after such allocation. Except as otherwise provided in Section 8.01(b), if a
Participant, former Participant or his designated Beneficiary elects
distribution of his Account Balances in periodic installments pursuant to
Section 8.01(a)(3), the period over which distribution shall be made may not be
changed after distribution has commenced.
(b) Commencement of Distribution. Unless a Participant elects
otherwise in writing, distribution of a Participant's Account Balances shall
commence not later than the sixtieth (60th) day after the close of the Plan Year
in which the Participant attains age 65 or terminates employment, whichever is
later.
(c) Deferred Distribution. Except as otherwise provided in Section
8.05(b), in the event the Account Balances of a Participant, former Participant
or Beneficiary at any time exceeded thirty-five hundred dollars ($3,500) (or
such other amount permitted by Treasury Regulations) at the time the Account
Balances become distributable, the Account Balances shall not, unless the
Participant, former Participant or Beneficiary elects otherwise, by a written
election on a form approved by the Committee, be distributed to the Participant,
former Participant or Beneficiary, but shall be distributed in periodic
installments pursuant to Section 8.01(a)(3) to the Participant, former
Participant or Beneficiary commencing on the sixtieth (60th) day after the close
of the Plan Year in which the Participant or former Participant would have
attained age sixty-five (65) (or actual retirement date, if later) or the
Valuation Date coincident with or next succeeding the date the Committee is
notified of the death of the Participant, former Participant or Beneficiary. So
long as the Account Balances are being so held, such Participant, former
Participant or Beneficiary shall, to the extent provided in Section 6.02,
continue to share proportionately the net income or net loss and expenses of the
Investment Funds but shall not share in any contributions made by a
Participating Employer for any Plan Year after the Participant became a former
Participant.
(d) Minimum Distribution Requirements. A Participant, former
Participant or Beneficiary designated pursuant to Section 8.05(a) may also
elect, in writing on a form approved by the Committee, signed by the
Participant, former Participant or Beneficiary and filed with the Participating
Employer prior to the commencement of distribution of Account Balances, that
distribution be further deferred (except as otherwise provided herein or in
Section 8.05(b)). Notwithstanding anything else in this Plan to the contrary, a
Participant's or former Participant's benefits must commence no later than April
1 following the calendar year in which the Participant or former Participant
attains age seventy and one-half (70-1/2). Benefits must be paid (1) over a
period not longer than the life of the Participant or former Participant and his
designated Beneficiary or (2) over a period not extending beyond the life
expectancy of the Participant or former Participant or the joint life
expectancies of the Participant or former Participant and his designated
Beneficiary. If a Participant or former Participant dies before his entire
interest has been distributed to him, or if distribution has begun to his
designated Beneficiary, the Participant's or former Participant's entire
interest (or the remaining part of such interest if distribution has commenced)
will be distributed within five (5) years after his death (or the death of his
designated Beneficiary); provided, however, that this sentence shall not apply
if (A) the distribution of the Participant's or former Participant's interest
has commenced and is for a certain term permitted under (2) and such
distribution to the designated Beneficiary commences within one year after the
Participant's or former Participant's death or (B) the portion of the
Participant's or former Participant's Accounts to which his surviving spouse is
entitled shall be distributed over a period not extending beyond the life
expectancy of the surviving spouse and such distribution commences no later than
the date on which the Participant or former Participant would have attained age
seventy and one-half (70-1/2). If the Participant or former Participant dies
after commencement of payments, the remaining portion of such interest shall
continue to be distributed at least as rapidly as under the method of
distribution being used prior to the Participant's or former Participant'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.
(e) Special Provision for Participants Employed by American. Prior
to the April 1 following the calendar year in which he attains age seventy and
one-half (70-1/2), a Participant or former Participant who is an Employee of
American must make a written election with American on a form approved by the
Committee to receive his Account Balances in a form specified in Section
8.01(a), which form shall be irrevocable on such April 1. If a Participant or
former Participant who is an Employee of American does not so elect by such
date, the Account Balances shall be distributed in periodic installments
pursuant to Section 8.01(a)(3). In the event such Participant or former
Participant has elected to receive a distribution pursuant to Section 8.01(a)(1)
or (2), the Participant's or former Participant's entire Account Balances shall
be distributed by April 1 of the year following the year in which he attained
age seventy and one-half (70-1/2) and any Account Balances that become
distributable thereafter shall be distributed in the same manner as soon as
practicable after the end of each succeeding Plan Year. In the event such
Participant or former Participant has elected to receive (or receives in default
of such election) distribution in periodic installments pursuant to Section
8.01(a)(3), any Account Balances that become distributable after payments have
commenced shall be distributed in periodic installments (subject to Section
8.01(b)). Unless otherwise elected by the Participant, payments made pursuant to
this Section 8.02(e) shall be withdrawn first from the Participant's Account
Balances attributable to after-tax contributions and earnings thereon and then
from his remaining Account Balances on a pro rata basis.
(f) Notice Requirement. Any election pursuant to this Section 8.02
shall be made by filing the appropriate form in the manner and within the time
limits set by the Committee.
(g) Limitation on Amounts Distributable From Frozen Mutual Benefit
GIC Fund. Notwithstanding any other provision of the Plan to the contrary, any
distribution attributable to amounts invested in the Frozen Mutual Benefit GIC
Fund shall be limited to the greater of:
(1) the vested amount that can be withdrawn from the Mutual
Benefit Life Insurance Company guaranteed interest contract in which
the Investment Fund is invested; and
(2) the vested amount of the Participant's Account Balances
invested in the Frozen Mutual Benefit GIC Fund that may be paid
pursuant to the Cash Advance program set forth in Section 4.09;
provided, however, that such distribution shall be limited so that the
sum of the Cash Advances used to fund the distribution plus all other
annual additions credited to the Participant's Accounts (including any
previous Cash Advances) for that Plan Year, do not exceed the
contribution limits in Section 415 of the Code.
8.03. Payment of Kensington Money Purchase Account Balances.
(a) Section 401(a)(11) Assets. The Trustee shall be directed to
make payment to a Participant of all amounts held in his Kensington Money
Purchase Account, which amounts are subject to the joint and survivor annuity
requirements of Section 401(a)(11) of the Code and hereinafter referred to as
"Section 401(a)(11) Assets", upon termination of the Participant's employment
(whether by reason of Retirement, Disability, Termination of Employment Without
Fault, death or other reason) in accordance with this Section 8.03.
(b) Direction of Payment. The Trustee shall be directed to pay the
Participant's portion of his vested Account Balance attributable to Section
401(a)(11) Assets (as defined by Treasury Regulation Section 1.401(a)-20), in
cash or in kind, to or for the benefit of the Participant, as of the payment
date and in the form of payment described in Section 8.03(c) below, unless the
Participant elects a form of payment offered in Section 8.01(a) or Section
8.02(c)(2) and, if he is married, pursuant to a qualified election, as described
in Section 8.03(d).
(c) Payment Forms.
(1) If a Participant is legally married on the annuity
starting date as defined by Treasury Regulation Section 1.401(a)-20,
payment to the Participant of his Section 401(a)(11) Assets shall be
made by the purchase of a joint and survivor annuity, unless the
Participant elects a form of payment offered in Section 8.01(a) or
Section 8.03(c)(2) pursuant to a qualified election, as described in
Section 8.03(d). The joint and survivor annuity shall be equal in value
to a single life annuity. The joint and survivor benefits following the
Participant's death shall continue to the spouse during the spouse's
lifetime at a rate equal to fifty percent (50%) of the rate at which
such benefits were payable to the Participant. The Participant may
elect to receive a smaller annuity benefit with continuation of
payments to the spouse at a rate of seventy-five percent (75%) or one
hundred percent (100%) of the rate payable to a Participant during his
lifetime.
(2) If a Participant is not married on the annuity starting
date as defined in Treasury Regulation Section 1.401(a)-20, payment to
the Participant of his Section 401(a)(11) Assets shall be made in
accordance with the methods available under Section 8.01(a), or in
accordance with the following options:
(A) Payments over a period certain in monthly,
quarterly, semiannual, or annual cash installments after first
having: (i) segregated the aggregate amount thereof in a
separate, federally insured savings account, certificate of
deposit in a bank or savings and loan association, money
market certificate or other liquid short-term security or (ii)
purchased a nontransferable annuity contract providing for
such payment. The period over which such payment is to be made
shall not extend beyond the Participant's life expectancy (or
the joint life expectancy of the Participant and his
Beneficiary); or
(B) Purchase of an annuity; provided that such
annuity may not be in any form that will provide for payments
over a period extending beyond either the life of the
Participant (or the lives of the Participant and his
Beneficiary) or the life expectancy of the Participant (or the
joint normal life expectancy of the Participant and his
Beneficiary).
(d) Qualified Election. To make a qualified election, a married
Participant must waive his right to the joint and survivor annuity within the
ninety (90) day period ending on the annuity starting date, as defined by
Treasury Regulation Section 1.401(a)-20. A married Participant's spouse must
consent to his waiver of the joint and survivor annuity. The spouse's consent to
the waiver must be in writing, must acknowledge the effect of the waiver and
must specify either:
(1) The optional form of benefit selected; or
(2) That the spouse has the right to limit consent to a
specific optional form and elects to relinquish such right. In order to
be valid, the spousal consent must be witnessed by a Plan
representative or a notary public. Such spousal consent shall be
revocable by the spouse at any time prior to the annuity starting date,
as defined in Treasury Regulation Section 1.401(a)-20.
Notwithstanding the foregoing consent requirement, if the
Participant establishes to the satisfaction of the Committee that such written
consent may not be obtained because there is no spouse or the spouse cannot be
located, a waiver will be deemed a qualified election. In the event that the
spouse of a Participant is legally incompetent to give consent, such consent may
be given by the spouse's legal guardian, which shall include the Participant in
the event the Participant is the legal guardian of the spouse. In the event the
Participant is legally separated or has been abandoned, as provided by a court
order, spousal consent shall not be required, except where otherwise provided by
a Qualified Domestic Relations Order.
Any consent necessary under this provision shall be valid only
with respect to the spouse who signs the consent or, in the event of a deemed
qualified election, the designated spouse. A revocation of a prior waiver may be
made by a Participant without the consent of the spouse at any time before the
annuity starting date. The number of revocations shall not be limited.
The Committee shall provide to each Participant, within a
reasonable period prior to the annuity starting date, a written explanation of:
(1) The terms and conditions of the joint and survivor
annuity;
(2) The Participant's right to make and the effect of an
election to waive the joint and survivor annuity;
(3) The rights of the Participant's spouse; and
(4) The right to make and the effect of a revocation
of a previous election to waive the joint and survivor annuity.
(e) Qualified Pre-Retirement Survivor Annuity. If a Participant
dies before the annuity starting date, payment of his vested Account Balance
attributable to Section 401(a)(11) Assets shall be made to the surviving spouse
of the Participant in the form of a qualified pre-retirement survivor annuity
unless the Participant either has no spouse or has designated another
Beneficiary in the manner described in Section 8.06, or the spouse elects to
receive payment in a form provided in Section 8.01(a) or 8.03(c)(2). The
surviving spouse may elect to receive payment as soon as administratively
feasible after the Participant's death. In order for the designation of a
Beneficiary other than the spouse to be valid, the designation must have been
made after the first day of the Plan Year in which the Participant attains age
thirty-five (35), the designation must contain a waiver of the qualified
pre-retirement survivor annuity, the Participant's spouse must consent in
writing to the waiver of the qualified pre-retirement survivor annuity and
either to the specific nonspouse Beneficiary designation or to a general
Beneficiary designation, provided such consent acknowledges that the spouse has
the right to limit consent to a specific Beneficiary and elects to relinquish
such right. A valid spousal consent shall be witnessed by either a
representative of the Plan or a notary public and shall be revocable by the
spouse at any time prior to the annuity starting date, as defined in Treasury
Regulation Section 1.401(a)-20. The Committee shall provide to each Participant
a written explanation of the qualified pre-retirement survivor annuity within
the applicable period. With respect to any Participant, the applicable period
means whichever of the following periods ends last:
(1) The period beginning with the first day of the Plan Year
in which the Participant attains age thirty-two (32) and ending with
the close of the Plan Year preceding the Plan Year in which the
Participant attains age thirty-five (35);
(2) A reasonable period ending after the individual becomes
a Participant; or
(3) A reasonable period ending after Section 401(a)(11) of
the Code first applies to the Participant.
Notwithstanding the foregoing, in the case of a Participant who
separates from service before attaining age thirty-five (35), the applicable
period means the period beginning one (1) year before the separation from
service and ending one (1) year after such separation. The written explanation
of the qualified pre-retirement survivor annuity shall provide comparable notice
and information to that described in Section 8.03(d) with respect to the joint
and survivor annuity.
A married Participant may designate a nonspouse Beneficiary prior
to the first day of the Plan Year in which the Participant attains age
thirty-five (35) if a written explanation of the pre-retirement survivor annuity
is given to the Participant by the Committee prior to the time of designation.
Such early nonspouse Beneficiary designation shall become invalid as of the
first day of the Plan Year in which the Participant attains age thirty-five
(35). The designation of a nonspouse Beneficiary shall be revoked automatically
upon the marriage or remarriage of the Participant. Notwithstanding the
foregoing, the spousal consent requirement shall not apply if it is established
to the satisfaction of the Committee either that the spouse cannot be located or
that other circumstances set forth in regulations promulgated under Section 417
of the Code which preclude the necessity of the spouse's consent are present
with respect to the Participant.
If a Participant is not married or if he has designated a
Beneficiary other than his spouse, his vested Account Balance attributable to
Section 401(a)(11) Assets shall be paid to his designated Beneficiary in any of
the forms permitted under Section 8.01(a) or 8.03(c)(2).
If the Participant's surviving spouse is his Beneficiary, his
surviving spouse may elect to receive payments in any of the forms permitted
under Section 8.01(a) or 8.03(c)(2).
8.04. Certain Retroactive Payments. If the amount of the payment
required to be made or to commence on the date determined under Section 8.02 or
8.03 cannot be ascertained by such date, a payment retroactive to such date may
be made no later than sixty (60) days after the earliest date on which the
amount of such payment can be ascertained under the Plan.
8.05. Designation of Beneficiary.
(a) Designation by Participant. At any time prior to distribution
of the Account Balances in a Participant's Accounts or, if distribution shall
have begun in periodic installments, then at any time prior to distribution of
the last installment, a Participant or former Participant may designate a
Beneficiary or Beneficiaries (who may be executors or trustees and who shall be
the same person or persons for each of the Participant's Accounts) in a writing
filed with the Participating Employer on a form approved by the Committee,
signed by the Participant or former Participant. Any such designation may be
revoked or changed by the Participant or former Participant in a writing filed
with the Participating Employer on a form approved by the Committee, at any time
prior to distribution of such Account Balances or, if distribution shall have
begun in periodic installments, then at any time prior to distribution of the
last installment. The spouse of a Participant or former Participant shall in all
cases be deemed to be the Beneficiary of the Participant or former Participant
unless the Participant or former Participant prior to death shall have filed
with the Participating Employer on a form approved by the Committee a
designation of someone else as Beneficiary and the spouse of the Participant or
former Participant shall have consented in writing to such designation and the
consent acknowledges the effect of the designation and is witnessed by a notary
public or Plan representative. The spouse's consent may be dispensed with only
if the Participant establishes to the satisfaction of the Participating Employer
that the spouse's consent cannot be obtained because the spouse cannot be
located or because of such other reasons as may be prescribed by Treasury
Regulations. If no effective designation of Beneficiary by a Participant or
former Participant shall be on file with the Participating Employer when Account
Balances would otherwise be distributable to a Beneficiary designated by a
Participant or former Participant, then such balance shall be distributed to the
spouse of the Participant or former Participant or, if there is no spouse, to
the executor of the will or the administrator of the estate of the Participant
or former Participant or, if no such executor or administrator shall be
appointed within six (6) months after the death of such Participant or former
Participant, the Committee shall direct that distribution be made, in such
shares as the Committee shall determine, to the child, parent or other blood
relative of such Participant or former Participant, or any of them, or to such
other person or persons as the Committee may determine.
(b) Designation by Surviving Primary Beneficiary. Each person who
is a surviving primary Beneficiary designated pursuant to Section 8.05(a) above
at the time of the death of the Participant or former Participant may designate
a Beneficiary or Beneficiaries (who may be executors or trustees and who shall
be the same person or persons for each of the Participant's Accounts) to
receive, upon the death of such Beneficiary designated pursuant to Section
8.05(a) above, all or any portion of the Account Balances otherwise
distributable to the Beneficiary pursuant to Section 8.05(a) above as of such
Beneficiary's date of death. Notwithstanding any other provision of this Plan to
the contrary, any balance distributable to any Beneficiary designated by a
Beneficiary pursuant to this Section 8.05(b) shall be distributed pursuant to
one of the methods of settlement provided in Section 8.01(a)(1) or (a)(2) as
elected by the Beneficiary designated pursuant to this Section 8.05(b) as soon
as practicable after the date of death of the Beneficiary designated pursuant to
Section 8.05(a) above and such balance shall be computed as of the Valuation
Date immediately preceding such date of death (or, if such date of death
coincides with a Valuation Date, then as of that Valuation Date). Any
designation made pursuant to this Section 8.05(b) may be made at any time prior
to the distribution of the Account Balances in the Participant's or former
Participant's accounts to the Beneficiary designated pursuant to Section
8.05(a), or if distribution shall have begun in periodic installments, prior to
the distribution of the last installment to the Beneficiary designated pursuant
to Section 8.05(a) above. Any designation made pursuant to this Section 8.05(b)
shall be made in a writing filed with the Participating Employer on a form
approved by the Committee and signed by the Beneficiary designated pursuant to
Section 8.05(a) above. Any designation made pursuant to this Section 8.05(b) may
be revoked or changed by the Beneficiary designated pursuant to Section 8.05(a),
in a writing filed with the Participating Employer on a form approved by the
Committee, at any time prior to distribution of such Account Balances to the
Beneficiary designated pursuant to Section 8.05(a) or, if distribution shall
have begun in periodic installments, at any time prior to distribution of the
last installment to such Beneficiary. If no effective designation of Beneficiary
pursuant to this Section 8.05(b) shall be on file with the Participating
Employer upon the death of the Beneficiary designated pursuant to Section
8.05(a) above, any balance otherwise then distributable to the Beneficiary
designated pursuant to Section 8.05(a) above shall be distributed to the spouse
of such Beneficiary or, if there is no spouse, to the executor of the will or
the administrator of the estate of such Beneficiary or, if no such executor or
administrator shall be appointed within six (6) months after the death of such
Beneficiary, the Committee shall direct that distribution be made, in such
shares as the Committee shall determine, to the child, parent or other blood
relative of such Beneficiary, or any of them, or to such other person or persons
as the Committee may determine.
8.06. Payment in Event of Legal Disability. If a Participant,
former Participant or Beneficiary is under a legal disability or, by reason of
illness or mental or physical disability, is unable, in the opinion of the
Committee, to attend properly to his personal financial matters, the Trustee may
make such payments in such of the following ways as the Committee shall direct
to the spouse, child, parent or other blood relative of such Participant, former
Participant or Beneficiary, or any of them, or to such other person or persons
as the Committee may determine until such date as the Committee shall determine
that such incapacity no longer exists.
8.07. 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 Participating Employer and the Participating
Employer 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 (2)
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
Participating Employer contributions under the Plan.
8.08. Information Required of Distributees. Each Participant,
former Participant and Beneficiary of a deceased Participant shall file with the
Participating Employer 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
Participating Employer, or if no such address was filed with the Participating
Employer then at his last post office address as shown in a Participating
Employer's records, if any, shall be binding on such person for all purposes of
this Plan, and neither any Participating Employer nor the Trustee shall be
obligated to search for or ascertain the whereabouts of any Participant, former
Participant or Beneficiary.
8.09. Direct Rollover Provision.
(a) Direct Rollover Option. 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) Eligible Rollover Distribution Defined. For purposes of this
Section 8.09, 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: (1) 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, (2) any distribution to the extent such distribution is required under
Section 401(a)(9) of the Code, and (3) 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) Eligible Retirement Plan Defined. For purposes of this Section
8.09, an eligible retirement plan is (1) an individual retirement account
described in Section 408(a) of the Code, (2) an individual retirement annuity
described in Section 408(b) of the Code, (3) an annuity plan described in
Section 403(a) of the Code, or (4) 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) Distributee Defined. For purposes of this Section 8.09, 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) Direct Rollover Defined. For purposes of this Section 8.09, a
direct rollover is any payment by the Plan to the eligible retirement plan
specified by the distributee.
ARTICLE IX
IN-SERVICE WITHDRAWALS
9.01. Hardship Withdrawals. In addition to any other withdrawals
that may be made pursuant to this Article IX, a Participant may, prior to his
Severance From Service, apply for a withdrawal of a specified portion of the
vested Account Balances in his Accounts (except his Profit-Sharing Account and,
where applicable, Cash Option Account, ACCO After-Tax Account, ACCO Rollover
Account and Kensington Money Purchase Account), in accordance with the
following:
(a) Amount and Frequency. Subject to the limitations set forth in
Section 9.09 and subject to such uniform and nondiscriminatory rules as may be
promulgated from time to time by the Committee, a Participant may apply not more
frequently than once during any twelve (12) month period for a hardship
withdrawal of all or any part of his Account Balances not previously withdrawn
(excluding earnings credited on Tax Deferred Contributions after December 31,
1988).
(b) Hardship Required. 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
(1) unreimbursed medical expenses incurred by the Participant, the Participant's
spouse, or any dependents, or necessary for such person to obtain medical care,
(2) the purchase of the principal residence of the Participant (excluding
regular mortgage payments), (3) tuition and related educational fees for
post-secondary education for the Participant, the Participant's spouse, or
dependents for the following twelve (12) months, and (4) 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 in-service withdrawals, distributions and nontaxable loans available
under this Plan and any other plan maintained by the Participating Employer. Any
determination of the existence of financial hardship and the amount to be
distributed as a result thereof shall be made by the Participating Employer in
accordance with the Code and the applicable regulations and using a uniform and
nondiscriminatory standard. If approved by the Participating Employer, 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.
(c) Notice Requirement. Any application for a hardship withdrawal
made pursuant to this Section 9.01 shall be submitted to the Participating
Employer within a period prior to the effective date of the hardship withdrawal
as may be specified by the Committee and must be on a form approved by the
Committee.
(d) Effective Date and Valuation Date. A hardship withdrawal shall
be effective as of the Valuation Date coincident with or next succeeding a
Participant's request for a hardship withdrawal and valued as of the same
Valuation Date. Payment of any amount withdrawn pursuant to this Section 9.01
shall be made as soon as practicable on or after the effective date of such
hardship withdrawal.
(e) Effect on Account Balances and Investment Funds. Whenever a
Participant's Account Balances are withdrawn pursuant to this Section 9.01, such
Account Balances shall be reduced from his Accounts in the following order: (1)
any Withdrawal Account; (2) any Accounts in which after-tax contributions were
made, on a pro rata basis; (3) any Accounts in which tax deferred contributions
were made, on a pro rata basis; (4) any Accounts in which company matching
contributions were made, on a pro rata basis; (5) any Transferred General Mills
Plan Account; and (6) any Account Balances attributable to any profit-sharing
contributions transferred or rolled over to the MasterBrand Industries, Inc.
Employee Savings Plan. Amounts allocated to the Investment Funds in the Accounts
from which amounts are withdrawn pursuant to this Section 9.01 shall be reduced
on a pro rata basis.
(f) Limitations. If a hardship withdrawal is made pursuant to this
Section 9.01, the Participant may not make Tax Deferred Contributions for a
period of twelve (12) months following the date of receipt of the distribution,
and the dollar limitation specified in Section 4.04 shall be reduced for the
Plan Year following the year of withdrawal by the amount of the Tax Deferred
Contributions made by the Participant during the Plan Year of the hardship
withdrawal. Notwithstanding any other provision of this Plan to the contrary,
the amount of any hardship withdrawal made pursuant to this Section 9.01 shall
be limited in accordance with Section 9.09.
9.02. Withdrawals Upon Attainment of Age 59-1/2.
(a) Amount. In addition to any other withdrawals that may be made
pursuant to this Article IX, and subject to the limitations set forth in Section
9.08, a Participant may, prior to his Severance From Service apply for a
withdrawal of all or any portion of his vested Account Balances in his Accounts
(except his Profit-Sharing Account and, where applicable, Cash Option Account,
ACCO After-Tax Account, ACCO Rollover Account and Kensington Money Purchase
Account) after he has attained age fifty-nine and one-half (59-1/2).
(b) Notice Requirement. Any application for a withdrawal made
pursuant to this Section 9.02 shall be submitted to the Participating Employer
within a period prior to the effective date of the withdrawal as may be
specified by the Committee and must be on a form approved by the Committee.
(c) Effective Date and Valuation Date. A withdrawal made pursuant
to this Section 9.02 shall be effective as of the Valuation Date coincident with
or next succeeding a Participant's request for such withdrawal and valued as of
such Valuation Date. Payment of any amount withdrawn pursuant to this Section
9.02 shall be made as soon as practicable on or after the effective date of such
withdrawal in a single sum payment in cash.
(d) Effect on Account Balances and Investment Funds. Whenever a
Participant's Account Balances are withdrawn pursuant to this Section 9.02, such
Account Balances shall be reduced from his Accounts in the following order: (1)
any Withdrawal Account; (2) any Accounts in which after-tax contributions were
made, on a pro rata basis; (3) any Accounts in which tax deferred contributions
were made, on a pro rata basis; (4) any Accounts in which company matching
contributions were made, on a pro rata basis; (5) any Transferred General Mills
Plan Account; and (6) any Account Balances attributable to any profit-sharing
contributions transferred or rolled over to the MasterBrand Industries, Inc.
Employee Savings Plan. Amounts allocated to the Investment Funds in the Accounts
from which amounts are withdrawn pursuant to this Section 9.02 shall be reduced
on a pro rata basis.
9.03. Withdrawal Provisions for Certain Accounts From
Profit-Sharing Plan of American Brands, Inc. In addition to any other
withdrawals that may be made pursuant to this Article IX, the following
provisions shall apply to withdrawals of Account Balances in the Withdrawal
Accounts, Deposit Accounts and Post-Tax Transfer Contribution Accounts
attributable to the Profit-Sharing Plan of American Brands, Inc.:
(a) Withdrawals From Withdrawal Accounts.
A Participant may at any time elect to make withdrawals from his
Withdrawal Account as provided in this Section 9.03(a). Any election to make a
withdrawal pursuant to this Section 9.03(a) must be made within the time period
prior to the effective date of such withdrawal as may be designated by the
Committee. Such Participant's Withdrawal Account shall be valued as of the
Valuation Date next succeeding the date of filing of his request to withdraw. In
no event shall such Participant be permitted to withdraw any part of the
Withdrawal Balance in his Withdrawal Account that would reduce the vested
interest in his Account Balances exclusive of the loan to less than the amount
of all outstanding loans at the time of receipt of the withdrawal request by the
Committee.
Any election to make a withdrawal pursuant to this Section 9.03(a)
shall be effective by the Participant's filing with the Committee, on a form
approved by it, a request to withdraw. Such request shall be signed by the
Participant and shall specify the amount to be withdrawn, which amount shall not
be more than his Withdrawal Account and shall not be less than one hundred
dollars ($100). Unless the Participant separates from employment on or before
the Valuation Date next succeeding the date on which his request is filed with
the Committee, such request shall be irrevocable. The amount specified in each
valid request to withdraw shall be distributed in a single sum cash
distribution.
Not more than one (1) withdrawal may be made by a Participant from
his Withdrawal Account, Post-Tax Transfer Contribution Account and Deposit
Account in any six (6) consecutive month period commencing January 1 or July 1
of any Plan Year.
Whenever all or any part of the Account Balances in a
Participant's Withdrawal Account are withdrawn pursuant to this Section 9.03(a),
amounts allocated therein to the Investment Funds shall be reduced on a pro rata
basis. Such withdrawal and reduction shall be effected as of the same date.
(b) Withdrawals From Deposit Accounts. A Participant may at any
time notify the Committee of his election to withdraw all or any part of the
Account Balance in his Deposit Account. Any election to make a withdrawal
pursuant to this Section 9.03(b) must be made within the time period prior to
the effective date of such withdrawal as may be designated by the Committee. If
such Participant elects to withdraw the entire Account Balance in his Deposit
Account, it shall be distributed to him pursuant to such one of the methods of
distribution provided for in Section 8.01(a)(1) or (2) that he shall have
specified on the form filed by him with the Committee. Any partial amount of a
Participant's Account Balance in his Deposit Account so withdrawn shall be paid
to the Participant in cash. Not more than one (1) withdrawal may be made by a
Participant from his Deposit Account, Post-Tax Transfer Contribution Account and
Withdrawal Account in any six (6) consecutive month period commencing January 1
or July 1 of any Plan Year. The amount to be reduced by reason of a
Participant's election to withdraw all or any part of the Account Balance in his
Deposit Account shall be valued on the Valuation Date next succeeding the date
of filing of his request to withdraw. Whenever all or any part of the Account
Balance in a Participant's Deposit Account is withdrawn pursuant to this Section
9.03(b), amounts allocated therein to the Investment Funds shall be reduced on a
pro rata basis. Any election to make a withdrawal pursuant to this Section
9.03(c) must be made within the time period prior to the effective date of such
withdrawal as may be designated by the Committee. Such withdrawal and reduction
shall be effected as of the same Valuation Date.
(c) Withdrawals From Post-Tax Transfer Contribution Accounts. A
Participant may at any time notify the Committee of his election to withdraw all
or any part of the Account Balance in his Post-Tax Transfer Contribution
Account. Any election to make a withdrawal pursuant to this Section 9.03(c) must
be made within the time period prior to the effective date of such withdrawal as
may be designated by the Committee. If a Participant elects to withdraw the
entire Account Balance in his Post-Tax Transfer Contribution Account, it shall
be distributed to him pursuant to such one of the methods of distribution
provided for in Section 8.01(a)(1) or (2) and that he shall have specified on
the form filed by him with the Committee. Any partial amount of a Participant's
Account Balance in his Post-Tax Transfer Contribution Account so withdrawn shall
be paid to the Participant in cash. Not more than one (1) withdrawal may be made
by the Participant from his Post-Tax Transfer Contribution Account, Withdrawal
Account and Deposit Account in any six (6) consecutive month period commencing
January 1 or July 1 of any Plan Year. The amount to be reduced by reason of a
Participant's election to withdraw all or any part of the Account Balance in his
Post-Tax Transfer Contribution Account shall be valued on the Valuation Date
next succeeding the date of filing of his request to withdraw. Whenever all or
any part of the Account Balance in a Participant's Post-Tax Transfer
Contribution Account is withdrawn pursuant to this Section 9.03(c), amounts
allocated therein to the Investment Funds shall be reduced on a pro rata basis.
Such withdrawal and reduction shall be effected as of the same Valuation Date.
9.04. Withdrawal Provisions for Certain Accounts From ACCO World
Corporation Profit-Sharing Plan.
(a) Withdrawals From ACCO After-Tax Accounts and ACCO Rollover
Accounts. In addition to any other withdrawals that may be made pursuant to this
Article IX, the provisions of this Section 9.04(a) shall apply to withdrawals
from ACCO After-Tax Accounts and ACCO Rollover Accounts attributable to the ACCO
World Corporation Profit-Sharing Plan. A Participant may elect in writing,
effective as of any March 31, June 30, September 30 or December 31, and on any
other day or in the case of hardship as provided in Section 9.04, to withdraw
any amount of not less than one thousand dollars ($1,000) or one hundred percent
(100%) of his Account Balance, if less, from his ACCO After-Tax Account and ACCO
Rollover Account. Any request for a withdrawal pursuant to this Section 9.04(a)
must be made to the ACCO Participating Employer within the time period prior to
the effective date of the withdrawal as may be designated by the Committee and
must be on a form approved by the Committee. No withdrawal under this Section
9.04(a) may exceed the Account Balance in his ACCO After-Tax Account or ACCO
Rollover Account, whichever is applicable. Whenever all or any part of the
Account Balance in a Participant's After-Tax Account is withdrawn pursuant to
this Section 9.04(a), amounts therein attributable to after-tax contributions
made on or before December 31, 1986 shall be reduced before any after-tax
contributions made after December 31, 1986. Whenever all or any part of the
Account Balance in a Participant's ACCO After-Tax Account or ACCO Rollover
Account is withdrawn pursuant to this Section 9.04(a), amounts allocated therein
to the Investment Funds shall be reduced on a pro rata basis.
(b) Hardship Withdrawals From ACCO After-Tax Accounts, ACCO
Rollover Accounts, Cash Option Accounts and Profit-Sharing Accounts. In addition
to any other withdrawals that may be made pursuant to this Article IX, the
provisions of this Section 9.04(b) shall apply to withdrawals by Participants
who are Employees of ACCO Participating Employers from ACCO After-Tax Account,
ACCO Rollover Account, Cash Option Account and Profit-Sharing Account
attributable to amounts contributed or allocated thereto for Plan Years prior to
January 1, 1996. A Participant may request to withdraw any amount from his ACCO
After-Tax Accounts, ACCO Rollover Accounts, Cash Option Accounts and
Profit-Sharing Accounts attributable to amounts contributed or allocated thereto
for Plan Years prior to January 1, 1996. Except as otherwise provided in this
Section 9.04(b), the distribution of any Account Balances in such Accounts shall
not commence prior to his death, Disability or other termination of employment,
except upon his demonstration of financial hardship. Determination of financial
hardship shall be made in accordance with Section 9.01(b). Any request for a
hardship withdrawal pursuant to this Section 9.04(b) must be made to the ACCO
Participating Employer within the time period prior to the effective date of the
withdrawal as may be designated by the Committee and must be on a form approved
by the Committee. Whenever all or any part of the Participant's Account Balances
are withdrawn pursuant to this Section 9.04(b), the Participant's Accounts shall
be reduced in the following order:
(1) after-tax contributions made on or before
December 31, 1986;
(2) after-tax contributions made after December 31, 1986;
(3) rollover contributions;
(4) amounts in the Cash Option Account (excluding earnings
thereon credited after December 31, 1988);
(5) amounts in the Profit-Sharing Account.
Whenever all or any part of the Account Balance in a Participant's Account is
withdrawn pursuant to this Section 9.04(b), amounts allocated therein to the
Investment Funds shall be reduced on a pro rata basis. The amount of any
hardship withdrawal made pursuant to this Section 9.04(b) shall be valued as of
the Valuation Date coincident with or immediately preceding the effective date
of such withdrawal.
9.05. Withdrawal Provisions for Certain Accounts From Acushnet
Company Employee Savings Plan. In addition to any other withdrawals that may be
made pursuant to this Article IX, a Participant may request to withdraw all or
any portion of his Account Balances in his Acushnet Employee Savings Account,
Acushnet Rollover Contribution Account, Transferred General Mills Plan Account,
Acushnet Tax Deductible Account and Acushnet Company Contribution Account. Any
such request must be made to the Acushnet Participating Employer within the time
period prior to the effective date of the withdrawal as may be designated by the
Committee and must be on a form approved by the Committee. The effective date of
any such withdrawal shall be as of a withdrawal date (which shall be March 31,
June 30, September 30 or December 31). Payment of any such withdrawal shall be
made as soon as practicable on or after the effective date of the withdrawal. No
withdrawal of Account Balances in a Participant's Acushnet Company Contribution
Account shall be permitted if such amounts had been contributed less than
twenty-four (24) months prior to the withdrawal.
9.06. Withdrawal Provisions for Profit-Sharing Accounts From
Day-Timers, Inc. Profit-Sharing and Employee Savings Plan. In addition to any
other withdrawals that may be made pursuant to this Article IX, a Participant
may request to withdraw all or any portion of his Account Balance in his
Profit-Sharing Account attributable to amounts allocated under the Day-Timers,
Inc. Profit-Sharing and Employee Savings Plan for Plan Years prior to January 1,
1996. The distribution of any such Account Balance shall not commence prior to
his death, Disability or other termination of employment, except upon his
demonstration of financial hardship. Determination of financial hardship shall
be made in accordance with Section 9.01(b). Any such request must be made to the
Day-Timers Participating Employer within the time period prior to the effective
date of the hardship withdrawal as may be designated by the Committee on a form
approved by the Committee. The amount of any hardship withdrawal made pursuant
to this Section 9.06 shall be valued as of the Valuation Date coincident with or
immediately preceding the effective date of such withdrawal. Whenever all or any
part of the Account Balances in a Participant's Profit-Sharing Account is
withdrawn pursuant to this Section 9.06, amounts allocated therein to the
Investment Funds shall be reduced on a pro rata basis.
9.07. Withdrawal Provisions for Certain Accounts From
Profit-Sharing and 401(k) Savings Plan of Jim Beam Brands Co. In addition to any
other withdrawals that may be made pursuant to this Article IX, the following
provisions shall apply to withdrawals from Account Balances in the Withdrawal
Accounts, Deposit Accounts and Post-Tax Transfer Contribution Accounts
attributable to the Profit-Sharing and 401(k) Savings Plan of Jim Beam Brands
Co.:
(a) Withdrawals From Withdrawal Accounts. A Participant may at any
time immediately following three (3) consecutive years of participation in the
Plan and the Jim Beam Brands Co. Profit-Sharing and 401(k) Plan elect to make
withdrawals from the Withdrawal Balance in his Withdrawal Account as provided in
this Section 9.07(a). Any election to make a withdrawal pursuant to this Section
9.07(a) must be made within the time period prior to the effective date of such
withdrawal as may be designated by the Committee. Such Participant's Withdrawal
Balance shall be the Account Balance in his Withdrawal Account as of the
Valuation Date next succeeding the date of filing of his request to withdraw
(or, if the date of filing coincides with a Valuation Date, then as of that
Valuation Date), minus the value as of such Valuation Date of his Withdrawal
Account as of the Annual Valuation Dates in each Plan Year ended within two (2)
years prior to the start of the Plan Year in which such request to withdraw is
filed. In no event shall such Participant be permitted to withdraw any part of
the contribution of a Beam Participating Employer made within two years prior to
the date of such withdrawal.
Any election to make a withdrawal pursuant to this Section 9.07(a)
shall be effective by the Participant's filing with the Beam Participating
Employer, on a form approved by the Committee, a request to withdraw. Such
request shall be signed by the Participant and shall specify the amount to be
withdrawn, which amount shall not be more than his Withdrawal Balance and shall
not be less than one hundred dollars ($100). Unless the Participant separates
from employment on or before the Valuation Date next succeeding the date on
which his request is filed with the Beam Participating Employer, such request
shall be irrevocable. The amount specified in each valid request to withdraw
shall be distributed in cash.
Not more than one (1) withdrawal may be made by a Participant from
his Withdrawal Account in any six (6) consecutive month period commencing with
the date of receipt of a written election form by the Beam Participating
Employer.
Whenever all or any part of the Account Balances in a
Participant's Withdrawal Account are withdrawn pursuant to this Section 9.07(a),
amounts allocated therein to the Investment Funds shall be reduced on a pro rata
basis. Such withdrawal and reduction shall be effected as of the same Valuation
Date.
(b) Withdrawals From Deposit Accounts. A Participant may at any
time notify the Beam Participating Employer of his election to withdraw all or
any part of the Account Balance in his Deposit Account. Any election to make a
withdrawal pursuant to this Section 9.07(b) must be made within the time period
prior to the effective date of such withdrawal as may be designated by the
Committee. If such Participant elects to withdraw all or any portion of the
Account Balance in his Deposit Account, it shall be distributed to him in cash.
Not more than one (1) withdrawal may be made by a Participant from his Deposit
Account in any six (6) consecutive month period commencing with the date of
receipt of a written election form by the Beam Participating Employer. The
amount to be reduced by reason of a Participant's election to withdraw all or
any part of the Account Balance in his Deposit Account shall be valued on the
Valuation Date next succeeding the date of filing (or, if the date of filing
coincides with a Valuation Date, then as of that Valuation Date) his election to
make such a withdrawal with the Beam Participating Employer. Whenever all or any
part of the Account Balance in a Participant's Deposit Account is withdrawn
pursuant to this Section 9.07, amounts allocated therein to the Investment Funds
shall be reduced on a pro rata basis. Such withdrawal and reduction shall be
effected as of the same Valuation Date.
(c) Withdrawals From Post-Tax Transfer Contribution Accounts. A
Participant may at any time notify the Committee of his election to withdraw all
or any part of the Account Balance in his Post-Tax Transfer Contribution
Account. Any election to make a withdrawal pursuant to this Section 9.07(c) must
be made within the time period prior to the effective date of such withdrawal as
may be designated by the Committee. If a Participant elects to withdraw all or
any portion of the Account Balance in his Post-Tax Transfer Contribution
Account, it shall be distributed to him in cash. Not more than one (1)
withdrawal may be made by the Participant from his Post-Tax Transfer
Contribution Account in any six (6) consecutive month period commencing with the
date of receipt of a written election form by the Beam Participating Employer.
The amount to be reduced by reason of a Participant's election to withdraw all
or any part of the Account Balance in his Post-Tax Transfer Contribution Account
shall be valued on the Valuation Date next succeeding the date of filing (or, if
the date of filing coincides with a Valuation Date, then as of that Valuation
Date) his election to make such a withdrawal with the Beam Participating
Employer. Whenever all or any part of the Account Balance in a Participant's
Post-Tax Transfer Contribution Account is withdrawn pursuant to this Section
9.07, amounts allocated therein to the Investment Funds shall be reduced on a
pro rata basis. Such withdrawal and reduction shall be effected as of the same
Valuation Date.
9.08. Withdrawal Provisions for Certain Account Balances From the
MasterBrand Industries, Inc. Employee Savings Plan. In addition to any other
withdrawals that may be made pursuant to this Article IX, a Participant who has
Account Balances attributable to any profit-sharing contributions under the
MasterBrand Industries, Inc. Employee Savings Plan prior to January 1, 1996 may
apply for a withdrawal of the vested portion of any such Account Balances, after
he has attained age fifty-nine and one-half (59-1/2). Any election to make a
withdrawal pursuant to this Section 9.08 must be made within the time period
prior to the effective date of such withdrawal as may be designated by the
Committee. 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 Accounts as of
the Valuation Date immediately preceding such withdrawal. Whenever all or any
portion of the value of such Account is withdrawn pursuant to this Section 9.08,
amounts allocated therein to the Investment Funds shall be reduced on a pro rata
basis. Notwithstanding any other provision of this Plan to the contrary, any
withdrawal pursuant to this Section 9.08 shall be limited in accordance with
Section 9.09.
9.09. Limitation on Withdrawals. Notwithstanding any other
provision of this Plan to the contrary, any withdrawal made pursuant to this
Article IX from the Frozen Mutual Benefit GIC Fund shall be solely for hardship
and shall be limited to the greater of:
(a) the vested amount that can be withdrawn from the Mutual
Benefit Life Insurance Company guaranteed income contract in which the
Fund is invested; and
(b) the Participant's Account Balances invested in the Frozen
Mutual Benefit GIC Fund that may be paid pursuant to the Cash Advance
program set forth in Section 4.09; provided, however, that the
withdrawal shall be limited so that the sum of the Cash Advances used
to fund the withdrawal plus all other annual additions credited to the
Participant's Accounts (including any previous Cash Advances) for that
Plan Year does not exceed the contribution limits set forth in Section
415 of the Code.
ARTICLE X
LOANS
10.01. Availability. A Participant may make application to his
Participating Employer to borrow from the vested portion of his Account
Balances; provided, however, that a Participant who is an Employee of an ACCO
Participating Employer may not borrow any portion of the Account Balances in his
Profit-Sharing Account or Cash Option Account. The Participating Employer may,
upon such uniformly applicable conditions as the Committee shall prescribe, make
such a loan in accordance with this Article X. No more than one loan the purpose
of which is to acquire any dwelling unit which within a reasonable time is to be
used as the principal residence of the Participant and one loan for any other
purpose 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
former Participant whose Accounts have 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.
10.02. Effect on Account Balances and Investment Funds. A loan
shall be made as of the Valuation Date next succeeding the Participating
Employer's receipt of the loan application and shall be based on the
Participant's Account Balances as of the Valuation Date immediately preceding
the Valuation Date as of which the loan is made. Whenever all or any part of a
Participant's Account Balances are borrowed, the amount representing such
Account Balances or part thereof transferred to the Loan Fund shall be reduced
in the following order: (a) amounts attributable to pre-tax deferrals and
earnings thereon; (b) amounts attributable to rollover contributions, and
amounts transferred to a Prior Plan, and earnings thereon; (c) except as
otherwise provided in Section 10.01, amounts attributable to profit-sharing
allocations and earnings thereon; (d) amounts attributable to after-tax
contributions and earnings thereon; and (e) amounts attributable to company
matching contributions and earnings thereon. The loan and such reduction shall
be effective as of the same Valuation Date. A loan shall be withdrawn from the
respective Investment Funds in which such Account Balances are invested on a pro
rata basis; provided, however, no loans shall be made from Account Balances
invested in the Frozen Mutual Benefit GIC Fund.
10.03. Amount. The amount of any loan made pursuant to this
Article X shall not be less than one thousand dollars ($1,000). The aggregate
amount of all such loans to a Participant or eligible former Participant shall
not exceed fifty percent (50%) of the vested portion of his Account Balances
under the Plan, and shall not exceed fifty thousand dollars ($50,000) minus the
largest outstanding Plan loan balance during the twelve (12) month period ending
the day before the loan is made.
10.04. Term of Loan. The term of a loan shall not exceed five (5)
years. Notwithstanding the foregoing, the term of a loan shall not exceed ten
(10) years if its purpose is to acquire any dwelling unit which within a
reasonable time is to be used as the principal residence of the Participant.
10.05. Promissory Note. A secured promissory note shall be
delivered to the Trustee pledging as collateral a portion of the Participant's
vested interest in his Accounts not less than the amount of the borrowing.
Interest on a loan shall be fixed by the Committee at a rate reasonably
equivalent to prevailing market interest rates.
10.06. Repayment. The loan shall be repaid in regular installments
in each pay period, by means of payroll deductions. Prepayment of a loan in its
entirety without penalty shall be permitted at any time. Partial prepayment of a
loan shall not be permitted at any time. Notwithstanding the foregoing,
repayment by a Participant who is on an Approved Leave of Absence or by an
eligible former Participant shall be made by such Participant or former
Participant on at least a monthly basis to the Trustee by means of a check or
money order delivered to the Participating Employer. A loan which is not repaid
when due shall be deemed to be in default. A loan under the Plan shall
constitute an earmarked investment of the borrowing Participant's Accounts. Loan
repayments shall be credited to the Participant's Account or Accounts from which
the loan was made monthly on a pro rata basis and shall be credited to the
Investment Funds monthly in accordance with the Participant's investment
election under Section 5.02 in effect at the time of repayment of the loan or,
in the absence of such investment election, to the Short-Term Investment Fund.
10.07. Reduction of Account Balance. Upon a Participant's
termination of employment or at such other time as the Participant's Account
Balances are distributed 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 before making any payments to Participant. If a loan
becomes in default, foreclosure on the promissory note and attachment of
security on such loan will not occur until a distributable event occurs under
the Plan.
ARTICLE XI
ADMINISTRATION OF PLAN
11.01. Fiduciaries.
(a) Allocation of Responsibility Among Fiduciaries for Plan and
Trust Administration. The Fiduciaries shall have only those specific powers,
duties, responsibilities and obligations as are specifically given them under
this Plan, the Trust Agreement or delegated to them by the Company. In general,
the respective Participating Employers shall have the sole responsibility for
making the contributions provided for under Article III. The Board of Directors
shall have sole authority to appoint and remove the members of the Committee,
the members of the Trusts Investment Committee and the Trustee, and to amend or
terminate, in whole or in part, this Plan or the Trust. The Company shall be the
Plan administrator for purposes of ERISA and shall have the sole responsibility
for the administration of this Plan, except that the Committee, or its delegate,
the Participating Employers and the Trusts Investment Committee shall have the
sole responsibility for the performance of those administrative duties
specifically given them as described in this Plan. The Executive Committee of
the Board of Directors shall have the sole authority to appoint Investment
Managers and select mutual funds. The Trustee shall have the sole responsibility
for the administration of the Trust and the management of the assets held
thereunder, except that, if one or more Investment Managers are appointed, each
Investment Manager shall have sole authority and responsibility for the
investment and reinvestment of such portion of the Investment Funds as the
Trusts Investment Committee directs. The Trusts Investment Committee shall have
the sole authority to exercise the right 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) Reliance of Fiduciaries. 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) Named Fiduciary. American shall be the "Named Fiduciary" for
purposes of ERISA. The Secretary of American shall be subject to service of
process on behalf of the Plan.
11.02. Corporate Employee Benefits Committee. The general
administration of the Plan and the responsibility for carrying out its
provisions shall be placed in a Corporate Employee Benefits Committee appointed
from time to time by the Board of Directors to serve at its pleasure. No person
shall be ineligible to be a member of the Committee because he is, was or may
become a Participant of the Plan.
11.03. Organization of Committee. The Board of Directors shall
elect a Chairman from among the members of the Committee and a Secretary who may
be but need not be a member of the Committee.
11.04. Action by Committee. The Committee shall hold meetings upon
such notice, at such place or places and at such time or times, as it may from
time to time determine. A majority of the members of the Committee at the time
in office shall constitute a quorum for the transaction of business. All
resolutions adopted or other action taken by the Committee shall be by vote of a
majority of the members of the Committee present at any meeting or without a
meeting by instrument in writing signed by a majority of the members of the
Committee. A dissenting Committee member who, within a reasonable time after he
has knowledge of any action or failure to act by the majority, takes such
reasonable and legal steps in opposing such action or failure to act as may be
appropriate, shall not be responsible for any such action or failure to act.
11.05. Disqualification of Committee Members. No member of the
Committee shall have any right to vote or decide upon any matter relating solely
to himself or solely to any of his rights or benefits under the Plan.
11.06. Committee Rules; Conclusiveness of Determinations. The
Committee, subject to the limitations of the Plan, shall from time to time
establish rules for the administration of the Plan and the transaction of its
business and shall make determination of all questions arising out of or in
connection with the provisions of the Plan not required by the Plan to be
determined by the Board of Directors or its Executive Committee, a Participating
Employer or the board of directors of another Participating Employer, the
Internal Audit Department of American or the independent public accountants who
audit the books of American and its consolidated subsidiaries, and any such
determination shall be conclusive upon all persons having an interest in or
under the Plan. Notwithstanding any other provision of this Plan to the
contrary, the Committee may delegate any of its responsibilities for
administration of the Plan. The foregoing powers of the Committee and any of its
delegates shall be exercised in accordance with the provisions of Sections 11.07
and 11.14.
11.07. Committee Powers and Duties. The Committee shall have such
powers and duties as may be necessary to discharge its responsibilities
hereunder, including, but not by way of limitation, the following:
(a) except as otherwise specified in Section 11.06, 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, former
Participants and/or Beneficiaries filing applications for benefits;
(c) to prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan;
(d) to receive from the Participating Employers, the Trustee and
Participants such information as shall be necessary for the proper
administration of the Plan;
(e) to prepare such reports in accordance with Section 11.08;
(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 Participating Employer or the Trustee), and to
allocate or delegate to them such powers, rights, and duties as the Committee
may consider necessary or advisable to properly carry out the administration of
the Plan, including but not limited to maintaining the accounts of Participants
and determining eligibility and claims for benefits and applications for loans
and in-service withdrawals, provided that such allocation or delegation, and the
acceptance thereof by such agents, attorneys, accountants, or other persons,
shall be in writing.
11.08. Reports. The Committee shall prepare annually 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. Such report shall be
submitted to the Board of Directors and a copy thereof shall be filed with the
Secretary of the Committee. The Committee 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'
employment, Account Balances and the percentages thereof which are vested under
the Plan; notifications to Participants; annual registration with the Internal
Revenue Service and annual reports to the Department of Labor.
11.09. Claims Procedure. The Participating Employer shall make all
determinations as to the right of any person to a benefit. Any denial by the
Participating Employer of the claim for benefits under the Plan by a
Participant, former Participant or Beneficiary shall be stated in writing by the
Participating Employer and delivered or mailed to the Participant, former
Participant or Beneficiary within ninety (90) days after receipt by the
Participating Employer; 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
Committee in writing within sixty (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 Committee a written statement of the claimant's position. The
Committee shall act upon such request for review within sixty (60) days after
receipt thereof unless special circumstances require further time, but in no
event later than one hundred twenty (120) days after receipt. If the Committee
confirms the denial, in whole or in part, the 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.
11.10. Data Concerning Participants. The Committee shall determine
the eligibility of Participants in accordance with the provisions of the Plan.
The Committee may require each Participating Employer to certify to it such data
with respect to employees or Participants who are or may be eligible for
benefits under the Plan (including, without limitation, dates of birth, marital
status, dates of entry into employment, Hours of Service and compensation), and
such data relating to the Participating Employer, as the Committee may deem
appropriate from time to time in order properly to administer the plan. In
determining Disability, the Participating Employer shall require as proof
thereof evidence of receipt of Social Security disability benefits.
11.11. Certification of Data. Any certification by a Participating
Employer of information required or permitted to be certified pursuant to the
Plan shall be conclusive on all parties in interest; provided, however, that
whenever any employee, Participant, former Participant or Beneficiary proves to
its satisfaction that the period of employment or Hours of Service or
compensation or date of birth or marital status or other data as so certified is
incorrect, the Participating Employer may correct such certification where it
deems this action appropriate in the circumstances.
11.12. Indemnity of Board of Directors and Committee Members. The
members of the Board of Directors, the members of the boards of directors of
each other Participating Employer, the members of the Executive Committee of the
Board of Directors, the members of the Committee and the members of the Trusts
Investment Committee shall be entitled to rely on any certification furnished by
a Participating Employer and upon reports or opinions furnished by any
accountant, actuary, Investment Manager, investment adviser of a mutual fund
which comprises an Investment Fund or legal counsel employed or retained by
American. The Participating Employers shall indemnify members of the Board of
Directors, members of the boards of directors of each other Participating
Employer, members of the Executive Committee of the Board of Directors, members
of the Committee and members of the Trusts Investment Committee and any other
employee who may act on their behalf, and each of them, 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.
11.13. Indemnity for Acts of Investment Managers. The members of
the Board of Directors, the members of the boards of directors of each other
Participating Employer, the members of the Executive Committee of the Board of
Directors, the members of the Committee and the members of the Trusts Investment
Committee and any other employee who may act on their behalf, and each of them,
shall be indemnified and saved harmless from all liability, joint or several,
for any loss to the Trust, including any depreciation of principal or loss of
income resulting from the purchase or retention of any property or any other
investment action made or taken by any Investment Manager or investment adviser
of a mutual fund which comprises an Investment Fund or any such action made or
taken by the Trustee acting on their instructions.
11.14. Non-Discriminatory Action. Whenever in the administration
of the Plan action by the Board of Directors or the Committee is required or
permitted with respect to eligibility or classification of employees,
contributions or benefits, such action shall be consistently and uniformly
applied to all persons similarly situated, and no such action shall be taken
which shall discriminate in favor of employees who are officers, stockholders or
highly compensated employees.
11.15. 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 Committee, shall be paid from the Trust; provided, however,
that the Participating Employers may pay their respective shares of such
expenses directly.
ARTICLE XII
MANAGEMENT OF TRUSTS
12.01. Funds in Trusts. All the assets of the Plan shall be held
in the Trust, comprising the American Stock Fund, S&P 500 Index Fund, Value
Equity Fund, the Large-Cap Growth Equity Fund, the Small-Cap Growth Equity Fund,
the International Equity Fund, the Growth-Oriented Diversified Fund, the
Value-Oriented Diversified Fund, the Government Securities Fund, the
Corporate/Government Bond Fund, the Short-Term Investment Fund, the Frozen Fixed
Fund and the Loan Fund, for use in accordance with the provisions of the Plan in
providing benefits for Participants, former Participants and Beneficiaries. To
the extent permitted by the Trust Agreement, the Trust may also hold assets of
any profit-sharing plan maintained by a Participating Employer or
Non-Participating Employer for use in accordance with the provisions of such
plan. The assets of the Trust will be held, invested and disposed of in
accordance with the terms of the Trust Agreement. All contributions under this
Plan shall be paid to the Trustee and, except as otherwise provided in Section
14.03, all assets of the Trust Fund allocable to the Plan, including income from
investments and from all other sources, shall be retained for the exclusive
benefit of Participants, former Participants and Beneficiaries, and shall be
used to pay benefits to such persons or to pay expenses of administration of the
Plan and the Trust to the extent not paid by American or another Participating
Employer.
12.02. Trustee and Trust Agreement. The Trust shall be held by a
Trustee under a Trust Agreement approved by the Board of Directors, with such
powers in the Trustee as shall be provided in the Trust Agreement and in
accordance with the provisions of the Plan. The Trust Agreement may provide for
the administration thereunder of the funds of any other defined contribution
plan established by American or any other Related Employer and for the
commingling of all funds administered under the Trust Agreement. The Trustee
shall be such bank or trust company as may be appointed by the Board of
Directors from time to time. The Board of Directors may remove a Trustee at any
time, upon reasonable notice, and upon such removal, or upon the resignation of
a Trustee, the Board of Directors shall appoint a successor Trustee.
12.03. Investment Managers. The Executive Committee of the Board
of Directors may appoint one or more investment counsel as Investment Managers
of all or a portion of the Investment Funds held in the Trust and grant to each
such Investment Manager full and sole authority and responsibility for the
investment and reinvestment of such portion thereof as the Trusts Investment
Committee so directs. The Executive Committee of the Board of Directors may
remove an Investment Manager at any time, upon reasonable notice, and upon such
removal, or upon the resignation of an Investment Manager, the Executive
Committee of the Board of Directors may appoint another Investment Manager. The
Executive Committee of the Board of Directors shall also have authority to
designate mutual funds for investments of the Plan.
12.04. Conclusiveness of Reports. Any report of the Trustee
required or permitted under the Plan shall be conclusive upon all Participants,
former Participants, and Beneficiaries.
ARTICLE XIII
AMENDMENT AND TERMINATION
13.01. Reserved Powers. American shall have the power by action of
its Board of Directors 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 to: (a)
revest in any Participating Employer any interest in the assets of the Plan or
any part thereof or (b) 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 American, such action is necessary to qualify, or
maintain the qualification of, this Plan under the provisions of the Code.
Notwithstanding the foregoing, no amendment may be adopted without the approval
of the stockholders of American that would increase the benefits accruing to
Participants who are Employees of American, increase the number of shares of
American Common Stock which may be issued under the Plan to Participants who are
Employees of American or modify the requirements as to eligibility of Employees
of American for participation in the Plan, provided that the Plan may be amended
to increase the American contribution percentage under Section 3.01 to
three-eighths (3/8) of one percent (1%) of Adjusted Income From Continuing
Operations without the approval of the stockholders of American. 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.
13.02. Plan Termination. The Plan may be terminated, completely or
partially, at any time by American, by action of the Board of Directors. In the
event of complete termination of the Plan or upon the complete discontinuance of
contributions under the Plan by all Participating Employers, and regardless of
any formal corporate action, all Account Balances of all Participants shall be
fully vested and nonforfeitable, after payment of all expenses of the Plan. In
the event of complete termination of the Plan or upon complete discontinuance of
contributions under the Plan, the Account Balances of all Participants and
former Participants shall be distributable as provided in Article VIII, except
that the Committee may direct, then or at any subsequent time, forthwith
distribution of all assets of the Plan to those entitled thereto at the time of
such direction. In the event of partial termination of the Plan, all Account
Balances of Participants as to whom the partial termination applies, and all
amounts thereafter credited to the Accounts of such Participants that arise from
any employer contributions for any period ending prior to or on the date of such
partial termination, shall be fully vested and nonforfeitable and shall be
distributable in accordance with Article VIII.
13.03. Plan Merger. The Plan may be merged or consolidated with,
and Plan assets and liabilities may be transferred to, any other plan that is
qualified under Section 401(a) of the Code, at any time upon action by the Board
of Directors. In the event of any merger or consolidation of the Plan with, or
transfer of Plan assets or liabilities to, any other plan qualified under
Section 401(a) of the Code, provision shall be made so that each Participant in
the Plan on the date thereof (if either the Plan or such other 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.
13.04. Successor Employer. In the event of the disposition of an
operating unit by American 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 American, American 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 date of termination of employment of each such
Employee.
ARTICLE XIV
MISCELLANEOUS
14.01. Non-Alienation of Benefits.
(a) 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.
(b) Application of Benefits. If any Participant, former
Participant or Beneficiary or other person having an interest in or under this
Plan or the Trust shall become bankrupt or shall attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge any benefit under
the Plan or interest in the Trust, then such benefit or interest shall cease and
determine, and in that event the Trustee shall hold or apply it, in such shares
as the Committee shall determine, to or for the benefit of such Participant,
former Participant or other person, or his spouse, child, parent or other blood
relative, or any of them, or to such other person or persons as the Committee
may determine, but the Trustee, as the case may be, shall be under no duty to
see to the application of any distributions so made.
14.02. Action by Participating Employers. Any action by a
Participating Employer regarding participation in or withdrawal from this Plan
shall be evidenced by a resolution of its board of directors certified by its
secretary or assistant secretary under its corporate seal. All actions taken in
administration of this Plan shall be taken by the appropriate members of the
Committee or officers of the Participating Employer or its other employees
authorized to take such actions by such officers.
14.03. 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, former 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 Code, the assets of the Trust
attributable to contributions made by that Participating Employer under the Plan
shall be returned to that Participating Employer within one (1) 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 Participating Employer and, after having been reduced by any
losses of the Trust attributable thereto, shall be returned to that
Participating Employer within one (1) year of the date the amount is paid to the
Trust.
(c) Each contribution made by a Participating Employer is
conditioned upon the deductibility of such contribution as an expense for
Federal income tax purposes and, therefore, to the extent that 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 disallowance of the deduction.
14.04. 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.
14.05. Right to Discharge. Every Employee and Participant shall be
subject to dismissal from the service of every and all Related Employers to the
same extent as if this Plan had never been created.
14.06. Absence of Guaranty. No Participating Employer in any way
guarantees the Trust against loss or depreciation. The liability of the Trustee
or the Participating Employers to make any payment or distribution under the
Plan related to assets held or to be held in the Trust is limited to the
available assets of the Trust.
14.07. Headings. The headings of Articles and Sections 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.
14.08. Governing Law. The Plan shall be governed by and
administered and construed under the laws of the State of New York except to the
extent that it is required to be governed by and administered and construed
under the laws of the United States of America.
ARTICLE XV
TOP-HEAVY RULES
15.01. Top-Heavy Determination.
(a) Top-Heavy Test. The Plan is top-heavy for a Plan Year if:
(1) the top-heavy ratio for the Plan exceeds sixty percent
(60%) and the Plan is not part of a required aggregation group or a
permissive aggregation group;
(2) 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 sixty percent (60%); or
(3) 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 sixty percent (60%).
(b) Top-Heavy Ratio. The top-heavy ratio is a fraction:
(1) 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 five (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
(2) 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 five (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 five
(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 twelve (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:
(1) is not a key employee but was a key employee in a prior
year; or
(2) has not been credited with at least one Hour of Service
with any Related Employer at any time during the five (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) Required Aggregation Group. A required aggregation group
consists of:
(1) each qualified plan of a Related 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
(2) any other qualified plan of a Related Employer which
enables a plan described in subparagraph (1) to meet the requirements
of Section 401(a)(4) or 410 of the Code.
(d) Permissive Aggregation Group. A permissive aggregation group
consists of:
(1) the required aggregation group; and
(2) any other plan or plans of the Related 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) Key Employee. A key employee is any employee or former
employee of a Related Employer (and the beneficiaries of such employee) who at
any time during the determination period was:
(1) an officer of a Related Employer with annual compensation
exceeding fifty percent (50%) of the dollar limitation under Section
415(b)(1)(A) of the Code;
(2) an owner (or considered an owner under Section 318 of the
Code) of one of the ten (10) largest interests in a Related Employer if
the individual's annual compensation exceeds the dollar limitation;
(3) a five percent (5%) owner of a Related Employer; or
(4) a one percent (1%) owner of a Related Employer with annual
compensation exceeding one hundred fifty thousand dollars ($150,000).
(f) Non-Key Employee. A non-key employee is an employee of a
Related Employer who is not a key employee, including an employee who is a
former key employee.
(g) Determination Period. The determination period is the Plan
Year containing the determination date and the four preceding Plan Years.
(h) Determination Date and Valuation Date. For the first Plan
Year, December 31, 1995 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) Accrual Method. 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 of a Related Employer
other than a key employee shall be determined under (1) the method, if any, that
uniformly applies for accrual purposes under all plans maintained by the group,
or (2) 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.
15.02. Minimum Vesting. Notwithstanding the provisions of Article
VII, if the Plan is top-heavy in any Plan Year, each Participant who has an Hour
of Service in such Plan Year shall have and retain a one hundred percent (100%)
vested interest in his Account Balances if he has at least three (3) years of
Vesting Service.
15.03. Minimum Contributions. Notwithstanding any other provision
of this Plan to the contrary, for any Plan Year for which the Plan is top-heavy,
unless a Participant who is a non-key employee accrues a benefit under a
retirement plan of a Related Employer for such Plan Year of not less than two
percent (2%) of his average annual compensation during the five (5) consecutive
years of his Vesting Service during which his compensation was the greatest
multiplied by his years of Vesting Service not in excess of ten (10)
(disregarding any years after the last Plan Year with respect to which the Plan
is top-heavy), each Participating Employer shall make such additional
contributions as shall be necessary to provide contributions for each Employee
eligible to participate under Article II who is not a key employee equal to
three percent (3%) of that Participant's compensation; provided that such
contribution need not exceed the greatest contribution for any key employee for
such Plan Year. The minimum contribution under this Section 15.03 shall apply
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:
(1) the individual failed to complete one thousand (1,000)
Hours of Service;
(2) the individual failed to make mandatory contributions to the
Plan; or
(3) the individual's compensation is less than a stated amount.
For purposes of this Article XV, the term "compensation" means compensation as
defined in Section 415 of the Code.
15.04. Special Annual Additions Limitation. In any Plan Year for
which the Plan is top-heavy, the fraction one (1.0) shall be used in place of
the fraction one and one-quarter (1.25) in applying the limitations in Sections
6.04 and 6.05 to a Participant who has also participated in a qualified defined
benefit plan of a Related Employer.
15.05. Provisions Applicable if Plan Ceases to be Top-Heavy. If
the Plan is top-heavy with respect to a Plan Year and ceases to be top-heavy for
a subsequent Plan Year and a Participant has completed three (3) years of
Vesting Service on or before the last day of the most recent Plan Year for which
the Plan was top-heavy, the applicable vesting schedule set forth in Section
15.02 shall continue to apply with respect to a Participant.
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
