<PAGE>
As filed with the Securities and Exchange Commission on April 16, 1997.
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIBREBOARD CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-0751580
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Texas Commerce Tower
2200 Ross Ave., Suite 3600
Dallas, Texas 75201
(Address of Principal Executive Offices) (Zip Code)
FIBREBOARD 401(K) RETIREMENT PLAN
(Full title of the plan)
GAROLD E. SWAN Copy to:
Vice President, Finance DONALD F. McALEENEN, ESQ.
Fibreboard Corporation Fibreboard Corporation
Texas Commerce Tower Texas Commerce Tower
2200 Ross Avenue, Suite 3600 2200 Ross Avenue, Suite 3600
Dallas, TX 75201 Dallas, TX 75201
(214) 954-9500 (214) 954-9500
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Proposed Proposed Maximum Amount of
Title of Securities Amount to Be Maximum Offering Aggregate Offering Registration
to Be Registered Registered(2) Price per Share(3) Price(3) Fee(4)
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 100,000 shares $34.65 $3,456,250 $1047.35
$0.01 par value(1)
- ---------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low prices as reported on the American
Stock Exchange on April 14, 1997.
(3) The Registration Fee has been calculated pursuant to Rule 457(h).
-------------------------------
The Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to
Part I of Form S-8.
1.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by the Registrant, are hereby incorporated by reference in
this Registration Statement:
(i) The Registrant's Annual Report filed with the Commission on March 27,
1997 on Form 10-K for the fiscal year ended December 31, 1996, as
amended;
(ii) The information with regard to the Registrant's capital stock
contained in the Registrant's Registration Statement on Form 10, filed
with the Commission pursuant to section 12 of the Securities Exchange
Act of 1934, including any subsequent amendment or report filed for
the purpose of updating such information.
In addition, all documents subsequently filed by the Registrant pursuant to
sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Law (the "Delaware GCL")
permits the Registrant to indemnify any person against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding in which such person is made a party by
reason of his being or having been a director, officer, employee or agent of
such company, in terms sufficiently broad to
2.
<PAGE>
permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities
Act. The statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors, or
otherwise.
Article Tenth of the Registrant's Certificate of Incorporation, as amended,
provides for the indemnification of its directors, officers and their
representatives to the maximum extent permitted by the Delaware General
Corporation Law. The Registrant has also entered into separate indemnification
agreements with its directors and officers that will require the Registrant,
among other things, to indemnify them against certain liabilities that may arise
by reason of their status or service as directors or officers to the fullest
extent permitted by law.
The directors and officers of the Registrant have a policy of insurance
under which they are insured, within limits and subject to limitations, against
certain expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities which might be imposed as a result of such
actions, suits or proceedings, in which they are parties by reason of their
being or having been directors or officers of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
NUMBER EXHIBIT
------ -------
4.1 Fibreboard 401(k) Retirement Plan, as amended to include the
Fibreboard Common Stock Fund
5.1 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of Independent Accountants
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit
5.1)
24.1 Power of Attorney (included on pages 7-8 of the Registration
Statement)
The undersigned Registrant hereby undertakes that it will submit the 401(k)
Retirement Plan, as amended to include the Fibreboard Common Stock Fund, to the
Internal Revenue Service (the "IRS") in a timely manner and has or will make all
3.
<PAGE>
changes required by the IRS in order to qualify the plan under Internal Revenue
Code Section 401.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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 this 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 this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
4.
<PAGE>
(b) The undersigned Registrant hereby further 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 Securities Exchange Act of 1934 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
5.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on this 14
day of April, 1997.
FIBREBOARD CORPORATION
By /s/ JOHN D. ROACH
-------------------------------------
John D. Roach
Chairman, President and Chief Executive
Officer
By /s/ GAROLD E. SWAN
-------------------------------------
Garold E. Swan
Vice President, Finance
(Principal Financial and Accounting
Officer)
6.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John D. Roach and Garold E. Swan, and each of
them, his true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments, including post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact and agents or his substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
SIGNATURE TITLE DATE
/s/ JOHN D. ROACH Chairman, President and Chief April 14, 1997
- ------------------------- Executive Officer (Principal
John D. Roach Executive Officer)
/s/ GAROLD E. SWAN Vice President, Finance April 14, 1997
- ------------------------- (Principal Financial and
Garold E. Swan Accounting Officer)
/s/ PHILIP R. BOGUE Director April 14, 1997
- -------------------------
Philip R. Bogue
/s/ WILLIAM D.EBERLE Director April 14, 1997
- -------------------------
William D. Eberle
/s/ GEORGE B. JAMES Director April 14, 1997
- -------------------------
George B. James
7.
<PAGE>
/s/ JOHN W.KOEBERER Director April 14, 1997
- --------------------------
John W. Koeberer
/s/ DONALD K. MILLER Director April 14, 1997
- --------------------------
Donald K. Miller
PLAN. Pursuant to the requirements of the Securities Act of 1933, as
amended, the Fibreboard 401(k) Retirement Plan has caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on this 14 day of April,
1997.
FIBREBOARD 401(k) RETIREMENT PLAN
By: /s/ Garold E. Swan
------------------------------------
Garold E. Swan, Chair,
Retirement Committee
8.
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
- ------- -------
4.1 Fibreboard 401(k) Retirement Plan, as amended to include the
Fibreboard Common Stock Fund.
5.1 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of Independent Accountants
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on pages 7-8 of the Registration
Statement)
9.
<PAGE>
EXHIBIT 4.1
Fibreboard 401(k) Retirement Plan, as amended to include the Fibreboard Common
Stock Fund
<PAGE>
FIBREBOARD CORPORATION 401(K) RETIREMENT PLAN
(AMENDED AND RESTATED AS OF JANUARY 1, 1997)
PREAMBLE
The Fibreboard Corporation 401(K) Retirement Plan ("Plan"), previously
known as the Fibreboard Corporation Profit Sharing 401(K) Plan, was established
January 1, 1988 and was later amended and restated effective January 1, 1993.
Effective January 1, 1997, or as otherwise indicated, this document constitutes
another complete amendment and restatement of the Plan.
The principal purpose of the 1993 amendment and restatement was to
bring the Plan into compliance with the requirements of the Tax Reform Act of
1986, the Omnibus Budget Reconciliation Act of 1986, the Omnibus Budget
Reconciliation Act of 1987, the Technical and Miscellaneous Revenue Act of 1988,
the Omnibus Budget Reconciliation Act of 1989, and the Unemployment Compensation
Amendments of 1992.
The principal purpose of this amendment and restatement is to merge
the plans of company's that have recently been acquired into the Plan and to
change the Matching and Retirement Contribution percentages.
The Plan and the Trust, which is the funding medium for the Plan, are
intended to meet the requirements for qualification and tax exemption under
Sections 401(a) and 501(a) of the Code, which includes a cash or deferred
arrangement intended to qualify under Section 401(k) of the Code. Unless the
contrary rule is clearly stated, the provisions of this Plan shall not apply to
the benefits payable to a Participant whose employment terminated prior to the
Effective Date.
1.
<PAGE>
ARTICLE I
DEFINITIONS
1.1 "Account" means the aggregate of the following accounts of the
Participant, as appropriate:
(a) Salary Deferral Account;
(b) Matching Contribution Account;
(c) Retirement Account; and
(d) Rollover Account.
1.2 "Administrator" means the administrator of the Plan as specified in
Section 13.8.
1.3 "Beneficiary" means the person or persons designated by or for a
Participant, entitled under this Plan to receive benefits after the death of a
Participant.
1.4 "Board of Directors" means the board of directors of the Company.
1.5 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.6 "Committee" means the administrative committee appointed and acting in
accordance with Section 13.7 of the Plan.
1.7 "Company" means the Fibreboard Corporation, a Delaware corporation.
1.8 "Compensation" means the amounts specified in this Section 1.8.
(a) GENERAL DEFINITION. Except as otherwise provided in this
Section 1.8, "Compensation" means compensation as defined for the Wages, Tips
and Other Compensation Box on Form W-2. The term "Compensation" also includes
severance payments distributed as the result of the sale of the Wood Products
Group to Sierra Pacific Industries (and effective August 1, 1996, all severance
payments distributed to Participants) and elective deferrals with respect to
employment with an Employer (i) under a qualified cash or deferred arrangement
described in Section 401(k) of the Code, or (ii) to a plan qualified under
Section 125 of the Code. In addition, Compensation shall not include
2.
<PAGE>
amounts paid as reimbursements or expense allowances for moving expenses, fringe
benefits (cash and noncash), deferred compensation or welfare benefits.
(b) SPECIAL RULE FOR ARTICLE VI AND ARTICLE XVI. For purposes of
applying the limitations under Section 415 of the Code set forth in Article VI
and the top-heavy requirements set forth in Article XVI, "Compensation" means an
Employee's wages within the meaning of Section 3401(a) of the Code and all other
payments of compensation by an Employer to an Employee in the course of the
Employer's trade or business for which the Employer is required to furnish the
Employee with a written statement under Sections 6041(d) and 6051(a)(3) of the
Code. For Plan Years commencing prior to 1997, Compensation shall not include
elective deferrals with respect to employment with an Employer (i) under a
qualified cash or deferred arrangement described in Section 401(k) of the Code,
or (ii) to a plan qualified under Section 125 of the Code.
(c) DEFINITION FOR ARTICLE V. For purposes of determining the
percentage limitations on Salary Deferral Contributions and Matching
Contributions set forth in Article V, the term "Compensation" also may mean
compensation as defined in either Treasury Regulation Section 1.415-2(d)(2),
(10), or (11), as elected by the Company.
(d) LIMITATIONS ON COMPENSATION. In any Plan Year any Compensation
in excess of $200,000 (or $150,000 for Plan Years commencing on or after
January 1, 1994), or such other amount established by the Secretary of the
Treasury, in accordance with Section 401(a)(17) of the Code shall be
disregarded. For purposes of applying the $200,000 limit ($150,000 limit for
Plan Years commencing on or after January 1, 1994).
For Plan Years prior to 1997, the "family unit" of a Highly Compensated
Employee who is either a five percent owner (as defined in Section 416(i)(1) of
the Code) or in the group of the ten Highly Compensated Employees paid the
greatest Compensation during the Plan Year shall be treated as one Participant
with one Compensation and the $200,000 limit ($150,000 limit for Plan Years
commencing on or after January 1, 1994) shall be allocated among the members of
the family unit in proportion to each Participant's Compensation. The "family
unit" of such a Highly Compensated Employee consists of the Highly Compensated
Employee, the Highly Compensated Employee's spouse and the Highly Compensated
Employee's lineal descendants who have not attained age 19 prior to the end of
the Plan Year.
1.9 "Determination Year" means the Plan Year.
1.10 "Disability" means the mental or physical inability of a Participant
to perform his normal job, as evidenced by his receipt of disability benefits
under the Social Security Act.
3.
<PAGE>
1.11 "Discretionary Contributions" means the contribution, if any, made by
an Employer pursuant to Section 3.4.
1.12 "Effective Date" means January 1, 1993, except as otherwise specified
in Article VI, Article VII, or required by the Tax Reform Act of 1986, as
amended.
1.13 "Election Date" means the last day of each month of each Plan Year and
shall be the date on which Salary Deferral Elections and investment elections
become effective. As of January 1, 1996, Election Date shall mean the first day
of each month of each Plan Year.
1.14 "Eligible Employee" means any Employee, except the following
Employees:
(a) An Employee whose compensation and conditions of employment are
subject to determination by collective bargaining, provided that retirement
entitlements have been a subject of good-faith bargaining between an Employer
and the person's lawful representative or bargaining agent unless the agreement
specifically provides for coverage of such Employee under this Plan;
(b) An Employee who is a nonresident alien and who receives no earned
income (within the meaning of Section 911(d) of the Code) from an Employer, such
earned income constituting income from sources within the United States (within
the meaning of Section 861(a)(3) of the Code);
(c) An Employee whose age is less than 21 years (effective January 1,
1996, this restriction shall be reduced to less than 18 years of age);
(d) A "leased employee" as defined in Section 1.16 of the Plan.
1.15 "Eligible Spouse" means that spouse to whom a Participant is married
on the earlier of the date such Participant's benefits commenced or the date of
his death. The term "Eligible Spouse" means a former spouse in place of the
Participant's current spouse to the extent provided under a "qualified domestic
relations order" as described in Section 414(p) of the Code.
1.16 "Employee" means a person currently employed by an Employer, any
portion of whose income is subject to withholding of income tax and/or for whom
Social Security contributions are made by an Employer, and any other person
qualifying as a common law employee of an Employer. The term "Employee" also
includes a "leased employee." The term "leased employee" means any person
(other than an employee of the recipient) who pursuant to an agreement between
the recipient and any other person ("leasing organization") has performed
services for the recipient (or for the recipient and related persons determined
in accordance with Section 414(n)(6) of the Code) on a substantially
4.
<PAGE>
full-time basis for a period of at least one year, and such services are of the
type historically performed by employees in the business field of the recipient
employer. A leased employee shall not be considered an employee of the
recipient if: (i) such employee is covered by a plan if (A) such plan is a
money purchase pension plan with a nonintegrated employer contribution rate for
each participant of at least 10% of compensation, (B) such plan provides for
full and immediate vesting, and (C) each employee of the leasing organization
(other than employees who perform substantially all of their services for the
leasing organization immediately participates in such plan, and (ii) leased
employees do not constitute more than 20% of the recipient's Non-Highly
Compensated Employees.
1.17 "Employer" means the Company and any other corporation or trade or
business which has adopted or hereafter adopts the Plan with the approval of the
Company. A list of adopting Employers is attached to this Plan as "Appendix A"
and shall be kept current by the Committee.
For purposes of the definition of Highly Compensated Active Employee,
Article V (Nondiscrimination Limitations on Contributions), Article VIII
(Distribution of Benefits), Article IX (Withdrawals and Loans), Article XVI
(Top-Heavy Rules) and determining an Employee's Service Hours of Service, the
term "Employer" includes any corporation or trade or business which is or was a
member of a controlled group of corporations, a group of businesses under common
control or an affiliated service group (within the meaning of Sections 414(b),
(c), (m), and (n) of the Code) of which an Employer adopting the Plan is a
member, and any other entity required to be aggregated pursuant to
Section 414(o) of the Code and the regulations thereunder, and solely for the
purposes of the limitations under Section 415 of the Code, as modified by
Section 415(h) of the Code, but only for such period as the corporation or trade
or business and the adopting Employer are or were considered members of the
group.
In addition, for purposes of determining an Employee's Hours of Service and
for purposes of Article VI (Limitations on Allocations), the term "Employer"
includes the entities described in the preceding paragraph, as well as any
corporation or trade or business for which a leased employee (within the meaning
of Section 414(n) of the Code) performs services, but only for such period as
the leased employee performs such services.
1.18 "Entry Date" means the date upon which an Eligible Employee becomes a
Participant, which shall be the first day of each calendar month.
1.19 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
5.
<PAGE>
1.20 "Family Member" means, with respect to any Employee, such Employee's
spouse and lineal ascendants or descendants, and the spouses of such lineal
ascendants or descendants.
1.21 "Highly Compensated Active Employee" means any Employee who performs
service for an Employer during the Determination Year and who, during the
Look-Back Year either: (i) received Compensation from an Employer in excess of
$75,000 (indexed at the same time and in the same manner as the dollar limit in
Section 415(d) of the Code is indexed); (ii) received Compensation from an
Employer in excess of $50,000 (indexed at the same time and in the same manner
as the dollar limit in Section 415(d) of the Code is indexed) and was a member
of the "top-paid group" for such year; or (iii) was an officer of an Employer
and received Compensation during such year greater than 50% of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code; provided, however,
that if no officer received Compensation in excess of 50% of the dollar limit in
effect under Section 415(b)(1)(A) of the Code, the highest paid officer for such
year shall be treated as a Highly Compensated Employee. The term Highly
Compensated Active Employee also includes: (i) an Employee who is both
described in the preceding sentence if the term "Determination Year" is
substituted for the term "Look-Back Year" and the Employee is one of the 100
Employees who received the most Compensation from an Employer during the
Determination Year, and (ii) an Employee who is a 5% owner at any time during
the Look-Back Year or Determination Year. An Employee shall be considered to be
in the "top-paid group" for any Determination Year or Look-Back Year if the
Employee is in the group consisting of the top 20% of Employees when ranked on
the basis of Compensation paid during such year.
1.22 "Highly Compensated Employee" for Plan years commencing prior to
January 1, 1997, Highly Compensated Employee means an Employee who is either a
Highly Compensated Active Employee or a Highly Compensated Former Employee. The
determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the "top-paid group,"
the top 100 employees, the number of Employees treated as officers and the
Compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the regulations thereunder.
For Plan Years commencing on or after January 1, 1997, Highly Compensated
Employee means any Employee who performs service for an Employer during the
Determination Year and who, during the Look-Back Year meets any of the following
criteria:
(i) is a five percent (5%) owner (as determined under Code Section
416(i)(1)) of any Affiliated Company;
6.
<PAGE>
(ii) received aggregate Compensation for the Look-Back Year in excess
of Eighty Thousand Dollars ($80,000.00) and was a member of the Top-Paid Group
for the Look-Back Year.
The term "Top-Paid Group" shall mean the top twenty percent (20%) of all
Employees (including any Leased Employees treated as Employees pursuant to
Section 20.12) when ranked on the basis of the Compensation paid to such
Employees for the Determination Period. However, for purposes of calculating
the number of Employees in the Top-Paid Group, the following Employees shall be
excluded:
(i) Employees who have completed less than six (6) months of Service,
(ii) Employees who normally work less than seventeen and one-half
(171/2) hours per week,
(iii) Employees who normally work six (6) months or less during the
Determination Period,
(iv) Employees who are excluded from the definition of Employee under
Section 1.14(a).
The dollar amount specified in paragraph (b) shall be automatically
adjusted each Plan Year beginning after December 31, 1997 to take into account
cost-of-living increases in accordance with the Regulations issued under Code
Section 415(d).
For purposes of this subsection 1.22, the Compensation of each Employee
shall be determined on an aggregate basis as if all the Employers were a single
employer entity paying such earnings. All other determinations under this
subsection 1.22 shall be made in accordance with Code Section 414(q) and the
Treasury Regulations thereunder.
1.23 "Highly Compensated Former Employee" means an Employee who
(i) separated from service (or was deemed to have separated) prior to the
Determination Year, (ii) performs no service for an Employer during the
Determination Year, and (iii) was a Highly Compensated Active Employee for
either the separation year or any Determination Year ending on or after the
Employee's 55th birthday.
1.24 "Hour of Service" means each hour for which an Employee is:
(a) Directly or indirectly paid or entitled to payment by an Employer
for the performance of duties;
7.
<PAGE>
(b) Directly or indirectly paid or entitled to payment by an Employer
on account of a period of time during which no duties were performed
(irrespective of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability), layoff, jury
duty, military duty, or an authorized leave of absence. However, no more than
501 Hours of Service shall be credited under this paragraph (b) on account of
any single continuous period during which the Employee performs no duties
(whether or not such period occurs in a single computation period).
Payments made or due under a plan maintained by an Employer solely to comply
with applicable workers' compensation, unemployment compensation, or disability
insurance law, or to reimburse an Employee for medical or medically-related
expenses, shall not be considered as payments by an Employer for purposes of
this paragraph (b);
(c) Absent from work by reason of the pregnancy of the Employee, the
birth of a child of the Employee, the placement of a child with the Employee in
connection with the adoption of the child by the Employee, or the care of such
child by the Employee for a period immediately following birth or placement. No
more than 501 Hours of Service shall be credited under this paragraph (c) by
reason of any one pregnancy or placement. Hours of Service credited under this
paragraph (c) shall be credited solely for determining whether a One-Year Break
in Service has occurred. All Hours of Service credited under this paragraph (c)
shall be credited only in the computation period in which the absence from work
begins if any of such Hours of Service are required in that computation period
in order to avoid a One-Year Break in Service. If none of the Hours of Service
are required in such computation period, then the Hours of Service shall be
credited in the next computation period. Credit shall be given pursuant to this
paragraph (c) only after the Employee furnishes to the Administrator such timely
information as the Administrator may reasonably require to establish that the
absence is for the reason described in this paragraph; or
(d) Either awarded back pay or for which an Employer agrees to pay
such back pay, irrespective of mitigation of damages. The number of hours for
which back pay is attributable shall be determined in accordance with Department
of Labor Regulations, Section 2530.200b-2(b). An Hour of Service received under
this paragraph (d) shall be credited to that computation period for which the
award was granted. No hours shall be credited under this paragraph (d) if the
same hours have been credited under paragraphs (a), (b), or (c), above. Hours
of Service for which back pay is awarded or agreed to with respect to periods
described in paragraph (b) shall be subject to the limitations set forth in that
paragraph.
The number of Hours of Service to be credited to an Employee shall be
determined on an equivalency basis by crediting the Employee with 190 Hours of
Service for each month during which he completes one Hour of Service. Hours of
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Service shall be credited to the applicable computation period in accordance
with 29 Code of Federal Regulations Sections 2530.200b-2(b) and (c).
1.25 "Look-Back Year" means the 12-month period immediately preceding the
Determination Year.
1.26 "Matching Contribution" means the contribution, if any, made to the
Plan by an Employer pursuant to Section 3.3.
1.27 "Matching Contribution Account" means the account maintained for each
Participant for the purpose of recording any Matching Contributions allocated to
the Participant and any company matching contribution amount transferred from
the Norandex, Inc. Employees' Savings Plan, as adjusted for earnings and losses
allocated thereto.
1.27A "Norandex Savings Plan" means the Norandex, Inc. Employees' Savings
Plan as in effect immediately prior to the January 1, 1996.
1.28 "Non-Highly Compensated Employee" means an Employee who is not a
Highly Compensated Employee.
1.29 "Normal Retirement" means retirement on a Participant's Normal
Retirement Date.
1.30 "Normal Retirement Age" means the earlier of attaining age 60 or
attaining age 55 with 5 Years of Service.
1.31 "Normal Retirement Date" means the first day of the month coincident
with or next following a Participant's attainment of Normal Retirement Age.
1.32 "One-Year Break in Service" means, for purposes of vesting, with
respect to any Employee, a Plan Year during which the Employee is credited with
500 or fewer Hours of Service. For purposes of determining an Employee's
eligibility to participate, the term "One-Year Break in Service" means, with
respect to any Employee, an eligibility computation period during which the
Employee is credited with 500 or fewer Hours of Service. The initial
computation period is the 12-consecutive month period commencing on the date the
Employee first performs an Hour of Service for an Employer ("Employment
Commencement Date"). The succeeding eligibility computation period commences
with the first Plan Year which commences prior to the first anniversary of the
Employee's Employment Commencement Date.
1.33 "Participant" means any Eligible Employee who has become a Participant
of this Plan, in accordance with Article II of this Plan. "Participant" also
means any Eligible Employee who has made a Rollover Contribution
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pursuant to Section 3.6 regardless of whether such Eligible Employee has
otherwise become a Participant in the Plan in accordance with Article II of the
Plan; provided, however, that such a Participant shall not be entitled to have
contributions made on his behalf or to otherwise make contributions under the
Plan until he satisfies the requirements for participation set forth in
Article II. In addition, "Participant" means any Non-Key Employee as defined in
Section 16.2(c) who is or has been allocated an Employer minimum contribution
pursuant to Section 16.3, even if such Non-Key Employee is not otherwise a
Participant.
1.34 "Plan" means the Fibreboard Corporation 401(k) Retirement Plan, as set
forth herein, and any amendments thereto.
1.35 "Plan Year" means the twelve-month period ending on December 31 and
each calendar year thereafter.
1.36 "Prior Plan" means the Fibreboard Corporation Profit Sharing Plan, as
in effect immediately prior to the Effective Date.
1.37 "Resorts Group" means any adopting Employer who is classified as being
in the resort and leisure industry.
1.38 "Retirement Account" means the account established for a Participant
for purposes of recording any Retirement Contributions allocated to the
Participant and any amounts transferred from the Snider Plan, as adjusted for
earnings and losses allocated thereto.
1.39 "Retirement Contribution" means the contribution, if any, made to the
Plan by an Employer pursuant to Section 3.5.
1.40 "Rollover Account" means the account established for a Participant for
purposes of recording any Rollover Contributions made by a Participant, as
adjusted for earnings and losses allocated thereto.
1.41 "Rollover Contribution" means a contribution made by a Participant
pursuant to Section 3.6.
1.42 "Salary Deferral Contribution Account" means the account maintained
for each Participant for the purpose of recording any Salary Deferral
Contributions allocated to the Participant, as adjusted for earnings and losses
allocated thereto.
1.43 "Salary Deferral Contributions" means the contributions, if any, made
by an Employer on behalf of a Participant pursuant to Section 3.1.
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1.44 "Salary Deferral Election" means an election made by an Eligible
Employee, pursuant to Section 2.2 to defer a specified percentage of the
Eligible Employee's Compensation for the Plan Year.
1.45 "Snider Plan" means the Snider Lumber Products Company Profit Sharing
Plan as in effect immediately prior to the Effective Date.
1.46 "Trust" means the trust established pursuant to Article XI of this
Plan.
1.47 "Trust Agreement" means the agreement entered into between the Company
and the Trustee pursuant to Article XI.
1.48 "Trustee" means the trustee or trustees of the Trust established
pursuant to this Plan.
1.49 "Valuation Date" means June 30 and December 31 of each Plan Year and
such other date or dates as may be designated by the Administrator for the
valuation of Accounts of Participants.
1.50 "Year of Service" means for vesting purposes a Plan Year during which
an Employee is credited with not less than 1,000 Hours of Service. For purposes
of determining an Employee's eligibility to participate under Section 2.1, a
"Year of Service" means a 12-month eligibility computation period during which
an Employee is credited with not less than 1,000 Hours of Service. The initial
eligibility computation period is the 12-month period commencing on the date an
Employee first performs one Hour of Service for an Employer ("Employment
Commencement Date"). The succeeding eligibility computation period is the first
Plan Year which commences prior to the first anniversary of the Employee's
Employment Commencement Date regardless of whether the Employee is credited with
1,000 Hours of Service during the initial eligibility computation period.
Notwithstanding the foregoing, for eligibility purposes only if an Employee
completes 1,000 Hours of Service prior to the end of an eligibility computation
period, the Employee will be deemed to have completed one Year of Service on the
date the Employee completes such 1,000 Hours of Service.
1.51 Masculine pronouns used herein shall include the feminine, and the
singular number shall include the plural.
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ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 SERVICE REQUIREMENTS.
(a) An Eligible Employee who had an account in the Prior Plan or the
Snider Plan on December 31, 1992 shall become a Participant in the Plan on the
Effective Date.
(b) An Eligible Employee who had an account in the S-K-I Limited Ltd.
401(K) Retirement Plan and was an Employee on October 23, 1995 shall become a
Participant in the Plan on January 1, 1996.
(c) An Eligible Employee who had an account in the Norandex Savings
Plan shall become a Participant in the Plan on January 1, 1996.
(d) An Eligible Employee who was employed by the Vytec Corporation on
January 1, 1996 shall become a Participant in the Plan on January 1, 1996.
(e) An Eligible Employee who was participating in the Stucco Stone
Products 401(k) Retirement Plan, Oklahoma Better Homes, Inc. Savings Plan or the
Gentek Building Products Inc. Employee's Savings Plan on December 31, 1996 shall
become a Participant in the Plan on January 1, 1997.
(f) An Eligible Employee not described in paragraphs (a), (b),
(c) (d) and (e), above, shall become a Participant as of the first or any
succeeding Entry Date coincident with or next following the date he is credited
with one Year of Service; provided, however, that if he is not then an Eligible
Employee, he shall become a Participant as of the first or any succeeding Entry
Date thereafter on which he is an Eligible Employee.
2.2 SALARY DEFERRAL ELECTION. A Participant may elect to make a Salary
Deferral Election in accordance with Section 3.1.
2.3 TERMINATION OF PARTICIPATION. Participation in the Plan continues
until a Participant terminates employment by reason of Normal Retirement,
Disability, by death or until the Participant ceases to be an Employee. A
Participant who continues in employ with an Employer after attaining Normal
Retirement Age shall continue to participate in the Plan and have Salary
Deferral Contributions, Retirement Contributions, and Matching Contributions
allocated to his Account. An Employee whose participation in the Plan has
terminated shall be eligible to participate in the Plan as soon as he or she
resumes status as an
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Eligible Employee and shall be eligible to make a Salary Deferral Election as of
the Entry Date coinciding with or next following the date on which he again
becomes an Eligible Employee.
2.4 LEAVES OF ABSENCE. If an Employee is on a leave of absence with an
Employer's consent, the Employee's service shall not be considered terminated
for purposes of the Plan, provided that the Employee returns to the employ of
the Employer within 30 days after the expiration of the leave of absence, or
within any longer period as may be prescribed by law. A leave of absence shall
mean a leave granted by an Employer, in accordance with rules uniformly applied
to all Employees, for reasons of health or for reasons determined by the
Employer to be in its best interests. A leave of absence shall also include
periods of military service for which reemployment rights are prescribed by law.
For purposes of determining an Employee's Years of Service, an Employee who is
on an unpaid leave of absence shall not be credited with any Hours of Service
during his leave of absence. An Employee who is on a paid leave of absence
shall be credited with Hours of Service in accordance with Section 1.24. An
Employee who does not return to the employ of an Employer within 30 days
following the end of the leave of absence, or in the case of military service,
within the time required by law, shall be deemed to have terminated his
employment as of the date that the leave of absence began, unless such failure
to return was the result of Normal Retirement, Disability or death of the
Employee.
2.5 SUSPENDED PARTICIPATION. A Participant who ceases to be an Eligible
Employee, but who has not separated from service of an Employer, shall become a
suspended Participant. During the period of suspension, no amounts which are
based on his Compensation from and after the date of suspension shall be
credited to his Account. However, amounts previously credited to a
Participant's Account shall continue to vest, and the Participant shall be
entitled to benefits in accordance with the other provisions of the Plan while
he is a suspended Participant.
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ARTICLE III
CONTRIBUTIONS
3.1 SALARY DEFERRAL CONTRIBUTIONS.
(a) DEFERRAL OF COMPENSATION. Subject to the limitations set forth
in Article V and Section 3.2, below and notwithstanding anything in the Plan to
the contrary, on or after the month following attaining 21 years of age a
Participant may elect, pursuant to a Salary Deferral Election, to defer any
whole percentage of his Compensation that is not less than 1% and not greater
than 14% of his Compensation.
(b) DEFERRAL OF BONUS. Subject to the limitations set forth in
Article V and Section 3.2, below, in addition to any amounts a Participant
elects to defer pursuant to paragraph (a), above, a Participant shall be
entitled to make a special Salary Deferral Election with respect to each special
bonus payment of compensation that would otherwise be made to the Participant
equal to any whole percentage or amount that does not exceed 14% of such bonus
compensation payment.
(c) CHANGES IN SALARY DEFERRAL ELECTION. A Participant may change
his Salary Deferral Election as of any Election Date and may discontinue his
Salary Deferral Election at any time by giving the Administrator such advance
notice as determined by the Committee. All Salary Deferral Elections, changes
in Salary Deferral Elections or discontinuances of Salary Deferral Elections
shall be made in writing on such forms and in such manner as may be established
by the Committee.
(d) SALARY DEFERRAL CONTRIBUTIONS. An Employer shall make a Salary
Deferral Contribution to the Plan for each Participant in an amount equal to the
amount of Compensation which the Participant has elected to defer pursuant to
his Salary Deferral Election. The Employer shall pay over all Salary Deferral
Contributions to the Trustee on the earliest date on which such contributions
can reasonably be segregated from the Employer's general assets, but in any
event, within 30 days of the date on which such amounts would otherwise have
been payable to the Employee in cash.
(e) SUSPENSION OF SALARY DEFERRAL CONTRIBUTIONS. During a Plan Year,
the Committee may, in its sole discretion (but subject to such rules and
procedures as the Committee may prescribe), suspend or reduce the percentage of
Compensation deferred by a Highly Compensated Employee pursuant to
paragraphs (a) and (b) of this Section 3.1 for the remainder of the Plan Year if
the Committee projects that the Plan will not satisfy the limitations set forth
in
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Section 5.2. If the Committee subsequently projects that the Participant's
Salary Deferral Election has been reduced below the level necessary to satisfy
the tests contained in Section 5.2, the Committee may permit (subject to such
rules and procedures as the Committee may prescribe) such Participant to
increase his or her Salary Deferral Election for the remainder of the Plan Year
to a level not in excess of the level which the Committee projects will satisfy
the test contained in Section 5.2.
3.2 DOLLAR LIMIT ON SALARY DEFERRAL CONTRIBUTIONS.
(a) AMOUNT OF DOLLAR LIMIT. No Participant shall receive Salary
Deferral Contributions for the calendar year under this Plan which, when
combined with any other elective deferrals (as defined in Code
Section 402(g)(3)) made by the Participant under any qualified plan, exceed
$7,000 (as adjusted under Section 415(d) of the Code, in accordance with the
manner prescribed by the Secretary of the Treasury).
(b) DISTRIBUTION TO PARTICIPANT. Amounts deferred by a Participant
in excess of the limits set forth in paragraph (a), above, ("Excess Deferrals")
adjusted for income or loss pursuant to paragraph (c) below, shall be
distributed to the Participant no later than the first April 15 following the
close of the Participant's taxable year provided that the Participant or the
Participant's Employer notifies the Administrator of such Excess Deferrals.
Notwithstanding the foregoing, a Participant shall be deemed to have notified
the Plan of Excess Deferrals to the extent the Participant has Excess Deferrals
for the Participant's taxable year by taking into account only elective
deferrals under the Plan and other plans of the Employers.
(c) CALCULATION OF INCOME. The income or loss allocable to Excess
Deferrals shall be equal to the sum of: (i) the income or loss for the
Participant's taxable year allocable to the Participant's Salary Deferral
Contributions multiplied by a fraction, the numerator of which is the
Participant's Excess Deferrals for the taxable year, and the denominator of
which is equal to the sum of (A) the portion of the Participant's Account
attributable to Salary Deferral Contributions at the beginning of the
Participant's taxable year, and (B) the Participant's Salary Deferral
Contributions for the Participant's taxable year. The income or loss allocable
to Excess Deferrals shall not include the income or loss for the period between
the end of the taxable year and the date of distribution.
3.3 MATCHING CONTRIBUTIONS.
(a) PRE 1996 PLAN YEAR MATCHING CONTRIBUTIONS. Prior to January 1,
1996, an Employer contributed a Matching Contribution equal to one-third of the
Salary Deferral Contributions made on the behalf of a Participant for a Plan
Year, provided that the Matching Contribution made pursuant to this sentence did
not exceed 2% of a Participant's Compensation for such Plan Year.
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(b) POST 1995 PLAN YEAR MATCHING CONTRIBUTIONS. Subject to the
limitations set forth in Article V and subparagraph (e), effective January 1,
1996, an Employer shall make the following Matching Contributions:
(i) An Employer shall contribute a Matching Contribution equal
to 100% of the Salary Deferral Contributions made on the behalf of a Participant
employed by the Resorts Group for a Plan Year, provided that the Matching
Contribution made pursuant to this subparagraph shall not exceed 5% of such
Participant's Salary Deferral Contributions for such Plan Year.
(ii) An Employer shall contribute a Matching Contribution equal
to 50% of Salary Deferral Contributions made on the behalf of a Participant
(other than a Participant employed by the Resorts Group) employed for a Plan
Year, provided that the Matching Contribution made pursuant to this subparagraph
shall not exceed 6% of a Participant's Salary Deferral Contributions for such
Plan Year.
(c) FORFEITURES. Forfeitures arising under Article VII shall reduce
an Employer's obligation to make Matching Contributions under this Section 3.3.
An Employer may change the amount of Matching Contribution by notifying
Participants in sufficient time to adjust their Salary Deferral Elections prior
to the start of the period for which the new Matching Contribution percentage
applies.
(d) TIME OF CONTRIBUTION. An Employer shall pay over all Matching
Contributions to the Trustee as soon as administratively practicable and in no
event later than the Employer's federal tax filing date, including extensions
thereof, for deducting such Matching Contributions. If Matching Contributions
are made on a per pay period basis, then following the end of each Plan Year,
the Employer shall following the end of each Plan Year, make an additional
Employer Matching Contribution on behalf of each Participant who is still
employed on the last day of the Plan Year and whose Employer Matching
Contribution determined on an annual basis exceeds the amount of Employer
Matching Contributions determined on per pay period basis throughout the Plan
Year. The amount of this additional Employer Matching Contribution shall be
equal to the difference between an Employer Matching Contribution determined
based on annual Compensation and Salary Deferral Contributions for the entire
Plan Year and the total amount of Employer Matching Contributions contributed to
the Plan in accordance with subparagraph above.
(e) VYTEC CORPORATION. Employee of Vytec Corporation are not
entitled to receive Matching Contributions.
3.4 DISCRETIONARY CONTRIBUTIONS. An Employer shall be permitted to make
such additional contributions to the Trust as it deems necessary in order to
comply with either the actual deferral percentage requirements of
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Section 401(k)(3) of the Code or the contribution percentage requirements of
Section 401(m)(2) of the Code for a Plan Year. An Employer may designate all or
any part of a Discretionary Contribution as a contribution to the Salary
Deferral Contribution portion of the Plan which shall be used for Section 401(k)
purposes or a contribution to the Matching Contribution portion of the Plan
which shall be used for Section 401(m) purposes. Any Discretionary Contribution
designated as a contribution to the Salary Deferral Contribution portion of the
Plan shall be allocated to the Salary Deferral Contribution Accounts of
Participants as necessary to satisfy the requirements set forth in Section
401(k)(3) of the Code and Section 5.2 of the Plan. Such Discretionary
Contributions shall satisfy the requirements for qualified nonelective
contributions treated as elective deferral contributions under
Section 401(k)(3)(B) and (C) of the Code and shall be subject to the withdrawal
and distribution rules applicable to Salary Deferral Contributions. Any
Discretionary Contributions designated as a contribution to the Matching
Contribution portion of the Plan shall satisfy the requirements for qualified
nonelective contributions treated as matching contributions under Section
401(m)(4)(C) of the Code. Such contributions shall be allocated as of the last
day of such Plan Year to any or all Participants on that date, other than
Participants who are Highly Compensated Employees, in accordance with the
average of their respective Actual Deferral Percentage and/or Contribution
Percentage for such Plan Year.
3.5 RETIREMENT CONTRIBUTIONS. For each Plan Year, an Employer shall make
a Retirement Contribution to the Trust in one or more installments in the amount
determined under paragraph 4.4, below. Forfeitures arising under Article VII
shall reduce an Employer's obligation to make Retirement Contributions under
this Section 3.5. The Plan Year for which each Retirement Contribution is made
shall be designated at the time of the contribution. An Employer shall pay over
all Retirement Contributions to the Trustee as soon as administratively
practicable and in no event later than the Employer's federal tax filing date,
including extensions thereof, for deducting such Retirement Contributions.
3.6 ROLLOVER CONTRIBUTIONS.
(a) ROLLOVERS FROM OTHER QUALIFIED PLANS. An Eligible Employee who
has distributed to him his entire interest in a plan meeting the requirements of
Section 401(a) of the Code may, in accordance with procedures approved by the
Committee, transfer the distribution to the Trustee, provided that the following
conditions are met:
(i) The transfer is made in cash on or before the 60th day after
the Eligible Employee receives the distribution; and
(ii) The distribution qualifies as an eligible rollover
distribution within the meaning of Section 402(c)(4) of the Code.
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(b) ROLLOVERS FROM INDIVIDUAL RETIREMENT ACCOUNTS. An Eligible
Employee who receives a distribution from an individual retirement account
described in Section 408(b) of the Code which constitutes the entire amount of
such account, and no portion of which is attributable to any source other than
an eligible rollover distribution from a plan qualified under Section 401(a) of
the Code may, in accordance with procedures approved by the Committee, transfer
the entire amount of such distribution to the Trustee within 60 days after
receiving the distribution.
(c) ADMINISTRATION. The Committee shall develop such procedures,
including procedures for obtaining information from an Eligible Employee
desiring to make such a transfer, as it deems necessary or desirable to enable
it to determine that the transfer will meet the requirements of this
Section 3.6. If the Administrator later determines that an amount transferred
pursuant to paragraph (a) or (b), above, did not satisfy the requirements set
forth in those paragraphs, the Eligible Employee's Rollover Contribution Account
shall immediately be (1) segregated from all other assets of the Plan,
(2) treated as a nonqualified trust established by and for the benefit of the
Employee, and (3) distributed to the Employee. Any such nonqualifying Rollover
Contribution shall be deemed never to have been part of the Plan.
3.7 MAXIMUM CONTRIBUTION. Employer contributions to the Plan shall not
exceed the amount which the Company estimates will be deductible under
Section 404(a)(3), or, if applicable under Section 404(a)(7) of the Code, or any
successor or similar statutory provision hereafter enacted.
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ARTICLE IV
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
4.1 ACCOUNTS. The Committee shall establish and maintain, where
appropriate, separate accounts for each Participant, including a Salary Deferral
Account, a Matching Contribution Account, a Retirement Account, and a Rollover
Account. Since these individual accounts are maintained only for accounting
purposes, a segregation of the Trust assets within each account is not required.
4.2 ALLOCATION OF SALARY DEFERRAL CONTRIBUTIONS. Salary Deferral
Contributions made by an Employer pursuant to Section 3.1(d), if any, shall be
allocated to the Salary Deferral Accounts of Participants in amounts equal to
the Salary Deferral Contributions contributed on their behalf pursuant to
Section 3.1(d).
4.3 ALLOCATION OF MATCHING CONTRIBUTIONS. Matching Contributions made by
an Employer pursuant to Section 3.3 shall be allocated to the Matching
Contribution Accounts of Participants in amounts equal to the Matching
Contribution contributed on their behalf pursuant to Section 3.3.
4.4 ALLOCATION OF RETIREMENT CONTRIBUTIONS. Retirement Contributions made
by an Employer pursuant to Section 3.5 shall be allocated as of the last day of
the Plan Year (or as prescribed by the Retirement Committee) to the Retirement
Account of each "Eligible Participant" as follows:
(a) PRE 1996 PLAN YEAR RETIREMENT CONTRIBUTIONS. Prior to January 1,
1996, Retirement Contribution were allocated to the Retirement Contribution
Account of each "Eligible Participant" in accordance with one of the following
percentages:
(i) 3% of Compensation to each hourly paid Eligible Participant.
(ii) 5% of Compensation to each salaried Eligible Participant who
is not a Highly Compensated Employee (and effective June 15, 1995, each salaried
Eligible Participant who was a Highly Compensated Employee and whose employment
with the Employer was terminated on or after June 15, 1995 by reason of the sale
of the Woods Product Group).
(iii) 3% of Compensation to each salaried Eligible Participant
who is a Highly Compensated Employee.
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The allocation to the Retirement Accounts of Eligible Participants
described in (i) or (iii) above may, in the discretion of the Company, be
increased to a level not in excess of 5% of each such Participant's Compensation
provided that such increased allocation is permissible under the requirements of
Section 401(a)(4) of the Code and applicable regulations.
(b) POST 1995 PLAN YEAR RETIREMENT CONTRIBUTIONS. Effective
January 1, 1996, an Employer shall make a Retirement Contribution to the
Retirement Account of each "Eligible Participant" in the amount of 4% of
Compensation of each "Eligible Participant." Notwithstanding the foregoing,
Stone Products Corporation shall make a Retirement Contribution to the
Retirement Account of each of its Employees who are Eligible Participants in
the amount of 2% of their Compensation.
(c) ELIGIBLE PARTICIPANT. For purposes of this Section 4.4, an
"Eligible Participant" means a Participant (other than an Employee of the Vytec
Corporation or as of January 1, 1996 an Employee of the Resorts Group) who
completes 1,000 Hours of Service in a Plan Year and is either employed on the
last day of the Plan Year, or (i) terminated employment during the Plan Year by
reason of Normal Retirement, Disability or by death, (ii) terminated employment
on or after June 15, 1995, by reason of the sale of the Woods Product Group,
(iii) terminated employment with the Fibreboard Corporation between August 31,
1996 and December 31, 1996 as the result of the closing of the Walnut Creek
office; provided, however, that if allocations pursuant to this Section 4.4 do
not satisfy the coverage requirements of Section 410(b) of the Code, the term
Eligible Participant also shall include a Participant who completes 500 hours of
Service in a Plan Year.
4.5 ALLOCATION TO ROLLOVER ACCOUNT. Any Rollover Contribution made by a
Participant pursuant to Section 3.6 shall be allocated to the Rollover Account
established for such Participant.
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ARTICLE V
NONDISCRIMINATION LIMITATIONS ON CONTRIBUTIONS
5.1 DEFINITIONS. For purposes of this Article V, the following
definitions shall apply unless otherwise indicated:
(a) "Actual Deferral Percentage" means for a Plan Year the ratio
(calculated to the nearest one-hundredth of one percent) of a Participant's
Salary Deferral Contributions and the Discretionary Contributions the Company
elects to take into account in computing the Actual Deferral Percentage made on
behalf of a Participant divided by the Participant's Compensation for the Plan
Year. The Actual Deferral Percentage of a Participant who has no Salary
Deferral Contributions or Discretionary Contributions made on his behalf shall
be zero. A Participant's Actual Deferral Percentage shall be computed according
to the following rules:
(i) Salary Deferral Contributions, Discretionary Contributions,
and Qualified Matching Contributions made on behalf of a Participant shall be
taken into account for a Plan Year only if such contributions are paid to the
Trust within two and one-half months after the end of such Plan Year.
(ii) In the case of a Highly Compensated Employee who is eligible
to participate in two or more plans of an Employer to which elective deferrals
may be made (other than an employee stock ownership plan as defined in
Section 4975(e)(7) of the Code), all elective deferral contributions made on
behalf of the Highly Compensated Employee must be aggregated for purposes of
determining such Highly Compensated Employee's Actual Deferral Percentage.
(iii) If the Employers maintain two or more plans that are
subject to the requirements of Section 401(k) of the Code, and such plans are
considered as one plan for purposes of Section 401(a)(4) or 410(b) of the Code,
all such plans shall be aggregated and treated as one plan for purposes of
determining the Actual Deferral Percentage of a Participant.
(iv) For Plan Years prior to January 1, 1997, if an eligible
Highly Compensated Employee is either a five percent owner (as defined in
Section 416(i)(1) of the Code) or in the group of the ten Highly Compensated
Employees paid the greatest Compensation during the Plan Year the combined
Actual Deferral Percentage for the family group (which includes the Highly
Compensated Employee and which is treated as one Highly Compensated Employee)
shall be determined by combining the elective deferrals, compensation and
amounts treated as elective deferrals of all the eligible Family Members. The
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elective deferrals, compensation and amounts treated as elective deferrals of
all Family Members are disregarded for purposes of determining the Actual
Deferral Percentage of all other Highly Compensated Employees and Non-Highly
Compensated Employees.
(b) "Average Actual Deferral Percentage" means the average of the
Actual Deferral Percentages of the eligible Participants in a group.
(c) "Average Contribution Percentage" means the average of the
Contribution Percentages of the eligible Participants in a group.
(d) "Average Percentage" means the Average Actual Deferral Percentage
or the Average Contribution Percentage, as applicable.
(e) "Contribution Percentage" means for a Plan Year the ratio of a
Participant's Matching Contributions and any Salary Deferral Contributions the
Company elects to take into account in computing the Contribution Percentage to
the Participant's Compensation for the Plan Year. The Contribution Percentage
of a Participant who has no Matching Contributions made on his behalf and for
whom the Company elects to take no Salary Deferral Contributions into account
shall be zero. A Participant's Contribution Percentage shall be computed
according to the following rules:
(i) Matching Contributions made on the Participant's behalf
shall be taken into account for a Plan Year only if such Matching Contributions
are allocated to the Participant's Account during such Plan Year and paid to the
Trust no later than the end of the 12th month following the end of such Plan
Year.
(ii) In the case of a Highly Compensated Employee who is eligible
to participate in two or more plans of an Employer to which matching
contributions, after-tax contributions, or both, are made (other than an
employee stock ownership plan as defined in Section 4975(e)(7) of the Code), all
such contributions made on behalf of such Highly Compensated Employee must be
aggregated for purposes of determining such Highly Compensated Employee's
Contribution Percentage.
(iii) If the Employers maintain two or more plans that are
subject to the requirements of Section 401(m) of the Code, and such plans are
considered as one plan for purposes of Section 401(a)(4) or 410(b) of the Code,
all such plans shall be aggregated and treated as one plan for purposes of
determining the Contribution Percentage of a Participant.
(iv) For Plan Years prior to 1997, if a Highly Compensated
Employee is either a five percent owner (as defined in Section 416(i)(1) of the
Code) or in the group of the ten Highly Compensated Employees
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paid the greatest Compensation during the Plan Year, the combined Contribution
Percentage for the family group (which includes the Highly Compensated Employee
and which is treated as one Highly Compensated Employee) shall be determined by
combining the after-tax contributions, compensation, matching contributions and
amounts treated as matching contributions of all the eligible Family Members.
The after-tax contributions, compensation, matching contributions and amounts
treated as matching contributions of all Family Members are disregarded for
purposes of determining the Contribution Percentage of all other Highly
Compensated Employees and Non-Highly Compensated Employees.
(f) "Excess Aggregate Contributions" means, with respect to any Plan
Year, the excess of:
(i) the aggregate amount of the Matching Contributions allocated
to a Highly Compensated Employee for a Plan Year, over
(ii) the maximum amount of such contributions that may be
allocated to the Highly Compensated Employee without violating the limitations
set forth in Section 5.2.
For Plan Years prior to 1997, the maximum amount that may be allocated to a
Highly Compensated Employee shall be determined by ranking the Highly
Compensated Employees by Contribution Percentage in descending order and then
reducing the Matching Contributions from the Accounts of the Highly Compensated
Employees starting with the highest Contribution Percentage to the extent
required to: (i) enable the Plan to satisfy the limitations set forth in
Section 5.2, or (ii) cause such Highly Compensated Employee's Contribution
Percentage to equal the Contribution Percentage of the Highly Compensated
Employee with the next highest Contribution Percentage. This process shall be
repeated until the Plan satisfies the limitations set forth in Section 5.2.
Notwithstanding the foregoing, in the case of a Highly Compensated Employee
whose Contribution Percentage is determined under the family aggregation rules
set forth in Section 5.1(e)(iv), this reduction shall be accomplished by
reducing such Highly Compensated Employee's Contribution Percentage in the
manner set forth above and allocating Excess Aggregate Contributions for the
family group among the Family Members in proportion to the Matching
Contributions of each Family Member that are combined to determine the
Contribution Percentage. In no event shall the amount of Excess Aggregate
Contributions exceed the amount of Matching Contributions made on behalf of a
Highly Compensated Employee for a Plan Year.
For Plan Years after 1996, the maximum amount that may be allocated to a
Highly Compensated Employee shall be determined by ranking the Highly
Compensated Employees with the highest dollar amount of Matching Contributions
in descending order, and then reducing the Matching Contributions
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of the Employee with the highest dollar amount of Matching Contributions to the
LESSER of (i) the dollar amount which would yield the Contribution Percentage
necessary to allow the Contribution Percentage for all Highly Compensated
Employees to satisfy the limitations set forth in Section 5.2, or (B) the dollar
amount of the Matching Contribution of the Highly Compensated Employee with the
next highest dollar amount of such Matching Contributions. This process shall
be repeated until the Plan satisfies the limitations set forth in Section 5.2.
The family aggregation rules set forth above do not apply for Plan Years after
1996.
(g) "Excess Contributions" means, with respect to any Plan Year, the
excess of:
(i) the Salary Deferral Contributions allocated to a Highly
Compensated Employee for a Plan Year, over
(ii) the maximum amount of Salary Deferral Contributions that
may be allocated to such Highly Compensated Employee without violating the
limitations set forth in Section 5.2.
For Plan Years prior to 1997, the maximum amount that may be allocated to a
Highly Compensated Employee shall be determined by ranking the Highly
Compensated Employees by Actual Deferral Percentage in descending order, and
then reducing Salary Deferral Contributions from the Accounts of Highly
Compensated Employees starting with the highest Actual Deferral Percentage to
the extent required to: (i) enable the Plan to satisfy the limitations set
forth in Section 5.2 or (ii) cause each such Highly Compensated Employee's
Actual Deferral Percentage to equal the Actual Deferral Percentage of the Highly
Compensated Employee with the next highest Actual Deferral Percentage. This
process shall be repeated until the Plan satisfies the limitations set forth in
Section 5.2. Notwithstanding the foregoing, in the case of a Highly Compensated
Employee whose Actual Deferral Percentage is determined under the family
aggregation rules set forth in Section 5.1(a)(iv), this reduction shall be
accomplished by reducing such Highly Compensated Employee's Actual Deferral
Percentage in the manner set forth above and allocating Excess Contributions for
the family group among the Family Members in proportion to the Salary Deferral
Contributions of each Family Member that are combined to determine the Actual
Deferral Percentage. In no event shall Excess Contributions exceed the amount
of Salary Deferral Contributions made on behalf of a Highly Compensated Employee
for a Plan Year.
For Plan Years after 1996, the maximum amount that may be allocated to a
Highly Compensated Employee shall be determined by ranking the Highly
Compensated Employees with the highest dollar amount of Salary Deferral
Contributions in descending order, and then reducing the Employee with the
highest dollar amount of Salary Deferral Contributions to the LESSER of (i) the
dollar amount which would yield the Actual Deferral Percentage necessary to
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allow the Actual Deferral Percentage for all Highly Compensated Employees to
satisfy the limitations set forth in Section 5.2, or (B) the dollar amount of
the Salary Deferral Contribution of the Highly Compensated Employee with the
next highest dollar amount of such Salary Deferral Contributions. This process
shall be repeated until the Plan satisfies the limitations set forth in
Section 5.2. The family aggregation rules set forth above do not apply for Plan
Years after 1996.
5.2 PERCENTAGE LIMITATIONS ON CONTRIBUTIONS. Notwithstanding anything in
the Plan to the contrary, the Average Actual Deferral Percentage and the Average
Contribution Percentage of Participants must each satisfy either the basic
Limitation or the alternative Limitation set forth below:
(a) BASIC LIMITATION. The Average Percentage of Highly Compensated
Employees who are eligible to participate in the Plan under Article II (whether
or not such Employees elect to have their Compensation reduced) shall not exceed
for the Plan Year the Average Percentage of Non-Highly Compensated Employees who
are eligible to participate in the Plan under Article II (whether or not such
Employees elect to have their Compensation reduced) for the prior Plan Year
multiplied by 1.25.
(b) ALTERNATIVE LIMITATION. The Average Percentage of Highly
Compensated Employees who are eligible to participate in the Plan under
Article II (whether or not such Employees elect to have their Compensation
reduced) shall not exceed the Average Percentage of Non-Highly Compensated
Employees who are eligible to participate in the Plan under Article II (whether
or not such Employees elect to have their Compensation reduced) for the prior
Plan Year multiplied by two, provided that the Average Percentage of Highly
Compensated Employees does not exceed the Average Percentage of Non-Highly
Compensated Employees by more than two percentage points.
(c) MULTIPLE USE LIMITATION. If both the average actual deferral
percentage test and the average contribution percentage test do not satisfy the
basic limitation set forth in paragraph (a) of this Section 5.2 and one or more
Highly Compensated Employees are eligible to have Salary Deferral Contributions
made on their behalf and to have Matching Contributions made on their behalf,
then the sum of the Actual Deferral Percentages of Highly Compensated Employees
plus the sum of the Contribution Percentages of Highly Compensated Employees
shall not exceed the greater of:
(i) The sum of: (A) 1.25 times the greater of the Actual
Deferral Percentages or Contribution Percentages of Non-Highly Compensated
Employees, plus (B) two percentage points plus the lesser of the Actual Deferral
Percentages or Contribution Percentages of Non-Highly Compensated Employees; or
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(ii) The sum of: (A) 1.25 times the lesser of the Actual
Deferral Percentages or Contribution Percentages of Non-Highly Compensated
Employees, plus (B) two percentage points plus the greater of the Actual
Deferral Percentages or Contribution Percentages of Non-Highly Compensated
Employees. If the multiple use limitation set forth in this paragraph (c) is
exceeded, the Administrator shall determine the maximum percentage to be used
in place of the calculated percentage for all Highly Compensated Employees
that would reduce either or both the Actual Deferral Percentage or
Contribution Percentage for the Highly Compensated Employees in order that
the multiple use limitation shall be satisfied. Any excess shall be handled
in the same manner that Excess Contributions or Excess Aggregate
Contributions are handled.
5.3 REMEDIAL MEASURES. If the Plan does not satisfy the requirements of
Section 5.2 for any Plan Year, the Administrator shall take such remedial
measures, as necessary, in accordance with either Section 5.4 or Section 5.5 in
order that the limitations set forth in Section 5.2 are met.
5.4 CORRECTION OF ACTUAL DEFERRAL PERCENTAGE TEST.
(a) GENERAL RULES. The Administrator shall determine the Excess
Contributions for each Highly Compensated Employee in accordance with
Section 5.1(g) and either: (i) distribute such amounts along with income or
loss attributable thereto, to the appropriate Highly Compensated Employees in
the manner set forth in paragraph (b) of this Section 5.4; (ii) contribute a
Discretionary Contribution on behalf of each Participant who is a Non-Highly
Compensated Employee in order that the limitations in Section 5.2 are met;
(iii) use any combination of (i), (ii), and (iii) to satisfy the limitations in
Section 5.2.
(b) DISTRIBUTION OF EXCESS CONTRIBUTIONS. Excess Contributions and
income allocable thereto shall be distributed to Participants on whose behalf
such Excess Contributions were made no later than the last day of the Plan Year
following the Plan Year for which the Excess Contributions were made. The
amount of Excess Contributions shall be reduced in accordance with regulations
prescribed by the Secretary of the Treasury, by the amount of the Excess
Deferrals, if any, distributed to the Participant under Section 3.2(b).
The income or loss attributable to Excess Contributions shall be equal to
the sum of: (i) the income or loss allocable to the Salary Deferral
Contributions made on the Participant's behalf for the Plan Year multiplied by a
fraction, the numerator of which is the Participant's Excess Contributions for
the Plan Year, and the denominator of which is equal to the sum of (A) that
portion of the Participant's Account attributable to Salary Deferral
Contributions at the beginning of the Participant's taxable year, and (B) the
Participant's Salary Deferral Contributions for the Participant's taxable year.
The income or loss allocable to
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Excess Contributions shall not include the income or loss for the period between
the end of the taxable year and the date of distribution.
(c) TREATMENT AS ANNUAL ADDITIONS. Excess Contributions shall be
treated as Annual Additions under Section 6.1(a).
5.5 CORRECTION OF AVERAGE CONTRIBUTION PERCENTAGE TEST.
(a) GENERAL RULE. The Administrator shall determine the Excess
Aggregate Contributions in accordance with Section 5.1(f) and either: (i) cause
such amounts along with the income or loss attributable thereto to be forfeited,
if not vested under the terms of the Plan, or, if vested, distributed no later
than the last day of the Plan Year; (ii) contribute a Discretionary Contribution
on behalf of each Participant who is a Non-Highly Compensated Employee in order
that the limitations in Section 5.2 are met; or (iii) use any combination of
(i) and (ii) to satisfy the limitations in Section 5.2. Any forfeiture or
distribution shall be made on the basis of the respective portion of the amount
of Excess Aggregate Contributions attributable to each Highly Compensated
Employee whose Matching Contributions Account received an allocation for the
preceding Plan Year.
(b) CALCULATION OF INCOME. The income or loss attributable to Excess
Aggregate Contributions shall be equal to the sum of: (i) the income or loss
allocable to the Participant's Matching Contributions, multiplied by a fraction,
the numerator of which is the Participant's Excess Aggregate Contributions for
the Plan Year, and the denominator of which is equal to the sum of (A) that
portion of the Participant's Account attributable to Matching Contributions at
the beginning of the Participant's taxable year, plus (B) the Participant's
Matching Contributions for the Participant's taxable year. The income or loss
allocable to Excess Aggregate Contributions shall not include the income or loss
for the period between the end of the taxable year and the date of distribution.
(c) DEADLINE FOR DISTRIBUTION. Excess Aggregate Contributions and
income allocable thereto shall be distributed to Participants on whose behalf
such Excess Aggregate Contributions were made no later than the last day of the
Plan Year following the Plan Year for which such Excess Aggregate Contributions
were made. Excess Aggregate Contributions shall be distributed from the
Participant's Matching Contribution Account.
(d) TREATMENT AS ANNUAL ADDITIONS. Excess Aggregate Contributions
shall be treated as Annual Additions under Section 6.1(a).
5.6 COMPLIANCE WITH TREASURY REGULATIONS. The Plan shall satisfy the
requirements of Sections 401(k)(3) and 401(m)(2) of the Code and the regulations
thereunder, and such requirements are hereby incorporated by reference.
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ARTICLE VI
LIMITATIONS ON ALLOCATIONS
6.1 ALLOCATION LIMITATION DEFINITIONS. For purposes of this Article VI,
the following definitions shall apply:
(a) "Annual Additions" means for any Limitation Year the sum of the
following amounts credited to a Participant's account in all qualified defined
contribution plans maintained by an Employer: (i) Employer contributions,
(ii) Employee contributions, and (iii) forfeitures. In addition, the term
"Annual Additions" includes amounts allocated after March 31, 1984, to an
individual medical account as defined in Section 415(l)(2) of the Code which is
part of a pension or annuity plan maintained by an Employer and amounts derived
from contributions paid or accrued after December 31, 1985, in taxable years
ending after such date which are attributable to post-retirement medical
benefits, allocated to the separate account of a key employee, as defined in
Section 419A(d)(3) of the Code, under a welfare benefit fund, as defined in
Section 419(e) of the Code maintained by an Employer.
(b) "Defined Benefit Fraction" means a fraction, the numerator of
which is the Projected Annual Benefit of the Participant under all defined
benefit plans maintained by an Employer (determined as of the close of the
Limitation Year) and the denominator of which is the lesser of:
(i) the product of 1.25 multiplied by the maximum dollar
limitation under Section 415(b)(1)(A) of the Code, as adjusted in accordance
with regulations issued by the Secretary of the Treasury, or
(ii) the product of 1.4 multiplied by an amount which is 100% of
the Participant's average Compensation for the three consecutive calendar years
while he or she was a Participant in the Plan in which his or her Compensation
was the highest.
A Participant's "Projected Annual Benefit" is the annual benefit (as defined in
Treasury Regulation Section 1.415-3(b)(1)(i)) a Participant would receive if he
or she continued employment, receiving his current Compensation in each
Limitation Year, until the later of age 65 or the Participant's current age, and
if all relevant factors used to determine benefits under the Plan for the
current Limitation Year remained constant for all future Limitation Years.
(c) "Defined Contribution Fraction" means a fraction, the numerator
of which is the sum of the Annual Additions to the accounts of the Participant
in all defined contribution plans (as defined in Section 414(i) of the Code)
maintained by an Employer (as of the end of the Limitation Year), and the
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denominator of which is the sum of the lesser of the following amounts
determined for such Limitation Year and for each prior year of service with the
Employers:
(i) the product of 1.25 multiplied by the maximum dollar
limitation for a defined contribution plan under Section 415(c)(1)(A) of the
Code (determined without regard to Section 415(c)(6) of the Code), as adjusted
in accordance with regulations issued by the Secretary of the Treasury, or
(ii) the product of 1.4 multiplied by an amount equal to 25% of
the Participant's Compensation.
(d) "Limitation Year" means the Plan Year.
6.2 GENERAL RULE. Notwithstanding anything to the contrary contained in
this Plan, the Annual Additions to a Participant's Account for any Limitation
Year shall not exceed the lesser of $30,000 (or such larger amount equal to
one-fourth of the defined benefit dollar limitation set forth in
Section 415(b)(1) of the Code, as adjusted by the Secretary of the Treasury) or
25% of the Participant's Compensation.
6.3 PARTICIPATION IN DEFINED BENEFIT PLAN. If a Participant also is a
participant in any defined benefit plan (as defined in Section 414(j) of the
Code) maintained by an Employer, then in addition to the limitation contained in
Section 6.2, the sum of (i) the Defined Benefit Fraction and (ii) the Defined
Contribution Fraction with respect to such Participant shall not exceed 1.0.
6.4 EXCESS ANNUAL ADDITIONS.
(a) ORDER OF REDUCTION. If, due to a reasonable error in calculating
a Participant's Compensation for a Limitation Year, or due to the allocation of
forfeitures, or such other facts and circumstances, as determined by the
Internal Revenue Service, the Annual Additions to a Participant's Account would
exceed the limitation described in Section 6.2, the Annual Additions made on
behalf of a Participant shall be reduced in the following order of priority to
the extent necessary to prevent the Annual Additions to any Participant's
Account from exceeding the limitations set forth in Section 6.2:
(i) Refund of any employee contributions made by the Participant
to any other defined contribution plan and earnings thereon, if such refund is
authorized under the terms of the other plan;
(ii) Reduction in the Participant's allocation of Salary Deferral
Contributions under this Plan for the Limitation Year in which the excess
occurs; and
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(iii) Reduction in the Participant's allocation of Matching
Contributions and Retirement Contributions under this Plan for the Limitation
Year in which the excess occurs.
Reduction of Employer contributions under this Section 6.4 shall not affect the
amount allocated to the Accounts of any Participant, except for a Participant on
whose behalf the Employer contribution was reduced.
(b) The excess Annual Additions reduced under paragraph (a), above,
shall be credited to a suspense account and shall be used to reduce Employer
contributions to the Plan on behalf of all Participants in the next Plan Year
and in succeeding Plan Years, as necessary. Notwithstanding the foregoing, any
Salary Deferral Contributions that are reduced in accord with this Section 6.4
shall be refunded to the Participant.
(c) TREATMENT OF AMOUNTS IN SUSPENSE ACCOUNTS. Excess amounts, while
retained in a suspense account, shall not participate in the allocation of
investment gains and losses under Section 12.3 until reapplied to the
Participants' Accounts and shall not be distributed to Participants. In the
event of termination of the Plan, the suspense account shall revert to the
Employers to the extent that it may not then be allocated to any Participant's
Account. Notwithstanding anything in the Plan to the contrary, an Employer
shall not knowingly contribute any amount that would cause an allocation to a
suspense account as of the date the contribution is allocated.
6.5 AGGREGATION OF PLANS. For purposes of this Article VI, all defined
contribution plans of an Employer (whether or not terminated) shall be treated
as one defined contribution plan of the Employer, and all defined benefit plans
of an Employer (whether or not terminated) shall be treated as one defined
benefit plan of the Employer.
6.6 EFFECTIVE DATE. The provisions of this Article VI shall be effective
January 1, 1987.
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ARTICLE VII
VESTING
7.1 VESTING OF ACCOUNTS.
(a) SALARY DEFERRAL ACCOUNT AND ROLLOVER ACCOUNT. The Salary
Deferral Account and the Rollover Account of a Participant shall be fully vested
and nonforfeitable at all times and shall not be subject to divestment for
cause.
(b) RETIREMENT AND MATCHING CONTRIBUTION ACCOUNTS. The Retirement
and Matching Contribution Accounts of Participants who have completed less than
three Years of Service as of October 1, 1992 shall vest in accordance with the
following schedule:
Completed Years Vested
of Service Percentage
--------------- ----------
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
The Retirement and Matching Contribution Accounts of Participants who have
completed three or more Years of Service as of October 1, 1992 shall vest in
accordance with the following schedule:
Completed Years Vested
of Service Percentage
--------------- ----------
3 40%
4 60%
5 100%
Years of Service completed prior to January 1, 1993 under both the Prior Plan
and the Snider Plan will be counted towards the Participant's completed Years of
Service under both vesting schedules set forth above. Notwithstanding the
foregoing, a Participant shall be fully vested in his Retirement and Matching
Contribution Accounts upon the attainment of Normal Retirement Age or if he
terminates employment by reason of Disability or death.
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(c) YEARS OF SERVICE COMPLETED UNDER THE NORANDEX, INC. EMPLOYEES'
SAVINGS PLAN. Notwithstanding the foregoing, for vesting purposes only, persons
who as of December 31, 1995 are: (i) Employees of Norandex, Inc., (ii)
Participants in the Norandex, Inc. Employees' Savings Plan, and (iii) have
completed three or more Years of Service shall have the right to elect to have
their nonforfeitable percentage computed under the five year cliff vesting
schedule contained in the Norandex, Inc. Employees' Savings Plan, in accordance
with the procedures set forth in Section 7.5.
7.2 TERMINATION OF EMPLOYMENT; FORFEITURES.
(a) If a Participant terminates employment and the value of the
Participant's vested Account does not exceed $3,500 (and has never exceeded
$3,500), the Participant shall receive a distribution of his entire vested
Account in accordance with Article VII, and the nonvested portion of his Account
shall be treated as a forfeiture. For purposes of this paragraph (a), if the
value of a Participant's vested Account is zero, the Participant shall be deemed
to have received a distribution of such vested Account.
(b) If a Participant terminates employment and the value of the
Participant's vested Account exceeds (or has ever exceeded) $3,500, and the
Participant consents to receive a distribution of the vested portion of his
Account in accordance with Section 8.1(b), the nonvested portion of his Account
shall be treated as a forfeiture. If the Participant elects to have distributed
less than the entire vested portion of his Account derived from Employer
contributions, the part of the nonvested portion that shall be treated as a
forfeiture shall be the nonvested portion of the Participant's Account
multiplied by a fraction, the numerator of which is the amount of the
distribution attributable to Employer contributions and the denominator of which
is the total value of the Participant's Account attributable to Employer
contributions.
(c) If a Participant receives a distribution pursuant to
paragraph (a) or (b), above, and the Participant is reemployed by an Employer,
the Participant's Employer-derived Account, determined as of the date of the
distribution, shall be restored from forfeitures, from income to the Plan, or
from Employer contributions if the Participant repays to the Plan the full
amount of the distribution attributable to Employer contributions before the
earlier of five years after the first date on which the Participant is
subsequently reemployed, or the date the Participant incurs five consecutive
One-Year Breaks in Service following the date of the distribution. If a
Participant is deemed to receive a distribution pursuant to paragraph (a),
above, and the Participant is reemployed by an Employer before the Participant
incurs five consecutive One-Year Breaks in Service, upon reemployment of such
Participant, the Participant's Employer-derived Account, determined as of the
date of the deemed distribution shall be restored from forfeitures, from income
to the Plan, or from Employer contributions.
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7.3 YEARS OF SERVICE DISREGARDED FOR VESTING PURPOSES. In determining
Years of Service for purposes of determining a Participant's vested percentage
under Section 7.1, all of the Participant's Years of Service shall be taken into
account except as follows:
(a) If at the time of a One-Year Break in Service a Participant does
not have any vested right under Section 7.1, Years of Service before such
One-Year Break in Service shall not thereafter be taken into account if the
number of consecutive One-Year Breaks in Service equals or exceeds the greater
of (i) the aggregate number of Years of Service before such Breaks in Service,
or (ii) five. Service before each Break in Service shall be deemed not to
include any Service not required to be taken into account hereunder by reason of
any prior Break in Service.
(b) If a Participant has five consecutive One-Year Breaks in Service,
Years of Service thereafter shall not be taken into account in determining the
vested portion of his Account derived from contributions for periods before such
Breaks in Service.
(c) Years of Service prior to the date the Participant attained age
18.
7.4 NO DIVESTMENT FOR CAUSE. Amounts vested pursuant to this Article VII
shall not be subject to divestment for cause.
7.5 AMENDMENT OF VESTING SCHEDULE. If the vesting schedule set forth in
Section 7.1 is amended, or the Plan is amended in any way that directly or
indirectly affects the computation of a Participant's vested percentage, or if
the Plan is deemed amended by an automatic change to or from a top-heavy vesting
schedule, each Participant with at least three Years of Service may elect to
have the nonforfeitable percentage completed under the Plan without regard to
such amendment or change. The period during which the election may be made
shall commence with the date the amendment is adopted or deemed to be made and
shall end on the latest of: (a) 60 days after the date the amendment is
adopted, (b) 60 days after the date the amendment becomes effective, or
(c) 60 days after the date the Participant is issued written notice of the
amendment by an Employer or the Plan Administrator.
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ARTICLE VIII
DISTRIBUTION OF BENEFITS
8.1 DISTRIBUTIONS TO PARTICIPANTS AND BENEFICIARIES.
(a) TIME OF DISTRIBUTION. Subject to the following provisions of
this Section 8.1, when a Participant's employment ceases, whether by reason of
quit, discharge, Disability, retirement or death, the Committee shall determine
the value of the Participant's vested Account in accordance with Section 12.3
and cause the vested Account to be distributed to the Participant, or, in the
case of the Participant's death, to the Participant's Beneficiary, in the form
set forth in paragraph (b), below, as soon as practicable after the event giving
rise to the distribution occurs. To the extent not inconsistent with
Section 8.2, payment of the balance in the Participant's vested Account shall
begin no later than the 60th day after the latest of the close of the Plan Year
in which: (A) the Participant attains Normal Retirement Age; (B) occurs the
fifth anniversary of the year in which the Participant commenced participation
in the Plan; or (C) the Participant terminates service with his Employer.
(b) FORM OF DISTRIBUTION. A Participant shall receive a distribution
of his vested Account in the form of a single sum payment in cash or in kind.
Notwithstanding the foregoing, a Participant (or the Participant's Beneficiary
in the case of the death of the Participant) who was a participant in the Snider
Plan may elect to receive a distribution of his vested Account in the form of
either (a) a single sum payment or (b) installment payments over a period
certain.
(c) DISTRIBUTIONS FROM THE COMPANY COMMON STOCK FUND. When
requesting a distribution under this Article VIII, a Participant (or
Beneficiary) may elect to receive the portion of his Account that is invested in
the Company Common Stock Fund in whole shares of Company Common Stock. Any
balance representing fractional shares will be distributed in cash.
(d) CONSENT TO DISTRIBUTION. Notwithstanding any other provision of
the Plan to the contrary, if the value of a Participant's vested Account exceeds
(or has ever exceeded) $3,500, distribution of the benefits shall not be made
without the Participant's written consent before the Participant attains age 62.
The Administrator shall provide such a Participant with written notice of his
right to defer distribution of the Participant's vested Account no less than 30
and no more than 90 days before distribution of such Participant's benefits have
commenced. Such notice also shall contain an explanation of the eligibility
requirements for, the material features of, and the relative values of the
optional forms of benefits available under the Plan. After receipt of the
notice described
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in this paragraph (c), a Participant may give his written consent to receive a
distribution. If a Participant whose vested Account exceeds (or has ever
exceeded) $3,500 does not consent to receive a distribution of his or her vested
Account, the vested Account shall remain invested in the Trust until the earlier
of the date the Participant attains age 62 or the Participant elects to receive
a distribution of his or her vested Account. The provisions of this
paragraph (c) shall not apply to distributions to Beneficiaries.
(e) CASH-OUT OF SMALL ACCOUNTS. Notwithstanding anything in the Plan
to the contrary, in the event that the Participant has terminated employment
with a vested balance in his Account of $3,500 or less (and has never exceeded
$3,500), the Participant's Account shall be distributed in a single sum
distribution as soon as practicable after the Participant's termination of
employment. No distribution may be made under this paragraph (d) after
distribution of benefits have commenced without the Participant's written
consent.
8.2 MINIMUM DISTRIBUTION RULES.
(a) REQUIRED BEGINNING DATE FOR PARTICIPANTS. Notwithstanding
anything in the Plan to the contrary, distribution of the balance of the
Participant's Account (or the first installment of such distribution) for a
Participant who attains age 70 1/2 on or after January 1, 1988 shall begin no
later than April 1 of the calendar year following the calendar year in which
the Participant attains age 70 1/2. Notwithstanding the foregoing, a
Participant who attained age 70 1/2 in 1988 who is not a five percent owner
of the Employer and who did not retire by January 1, 1989 shall be treated as
if he retired on January 1, 1989 so that such Participant's first possible
distribution calendar year is the 1989 Plan Year, and such Participant's
required distribution date is April 1, 1990. However, if the amount of
distribution required to commence on the date determined under this
subparagraph cannot be ascertained by such date, or if it is not possible to
make such distribution on such date because the Administrator has been unable
to locate the Participant after making reasonable efforts to do so, a
distribution retroactive to that date shall be made no later than 60 days
after the earliest date on which the amount of such distribution can be
ascertained under the Plan or the date on which the Participant is located
(whichever is applicable).
(b) PERIOD OF DISTRIBUTION. If the form of distribution is other
than a single sum distribution, then the Participant's entire interest shall be
paid over a period not extending beyond the life (or the life expectancy) of the
Participant, or the lives (or the joint life and last survivor expectancy) of
the Participant and his Beneficiary. For purposes of this paragraph (b), a
Participant may elect to have the life expectancy of either himself or his
spouse, or both, redetermined; provided, however, that if a timely election is
not made, such redetermination shall not be made. A Participant's election to
redetermine life expectancy shall (i) be made no later than the time
distributions are required to commence under paragraph (a) above, (ii) be
irrevocable, (iii) specify the
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frequency with which redeterminations are to be made (not more frequently than
annually), and (iv) require that such redeterminations be made from that date
forward. Notwithstanding anything in the Plan to the contrary, all
distributions shall comply with the requirements of Section 401(a)(9) of the
Code and the regulations thereunder, including Proposed Treasury Regulation
Section 1.401(a)(9)-(2), or any successor thereto.
(c) REQUIRED DISTRIBUTIONS TO BENEFICIARIES. Notwithstanding any
provision of this Article VIII to the contrary, any distribution to a
Participant's Beneficiary must comply with the following requirements:
(i) If distributions to a Participant have begun and the
Participant dies before his entire interest has been distributed to him, the
remaining portion shall be distributed at least as rapidly as under the
distribution method being utilized on the date of his death.
(ii) In no event shall any distributions be made later than
December 31 of the calendar year which contains the fifth anniversary of the
Participant's death unless the Participant's designated Beneficiary elects to
receive payments in substantially equal installments at least annually for a
period not exceeding the Beneficiary's life expectancy, in which case the first
installment must be made by December 31 of the calendar year immediately
following the calendar year of the Participant's death.
(iii) An Eligible Spouse who elects to receive installment
payments or a single sum payment as set forth in subparagraph (ii), above, may
defer commencement of payment(s) until December 31 of the calendar year the
deceased Participant would have attained age 70 1/2. If the Eligible Spouse
elects to defer such distribution in accordance with this subparagraph and the
Eligible Spouse dies leaving an unpaid balance, the balance shall be distributed
no later than December 31 of the calendar year that contains the fifth
anniversary of the Eligible Spouse's death to the Beneficiary designated by the
Participant or, in the absence of any designation, to the estate of the Eligible
Spouse.
8.3 INVESTMENT OF DEFERRED DISTRIBUTIONS. If a distribution to a
Participant or to a Beneficiary is to be deferred, the Participant shall
continue to direct the investment of his account in accordance with
Section 12.1.
8.4 NONLIABILITY. Any payment to any Participant, or to his legal
representative or Beneficiary, in accordance with the provisions of the Plan,
shall to the extent thereof be in full satisfaction of all claims under this
Plan against the Trustee, the Committee and any Employer, any of whom may
require such Participant, legal representative or Beneficiary, as a condition
precedent to such payment, to execute a receipt therefor in such form as shall
be determined by the Trustee, the Committee, or the Employers, as the case may
be. The Employers and the Trustee do not guarantee the Trust, the Participants,
former Participants
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or their Beneficiaries against loss of or depreciation in value of any right or
benefit that any of them may acquire under the terms of this Plan. All benefits
payable under this Plan shall be paid or provided for solely from the Trust, and
the Employers do not assume any liability or responsibility for those benefits.
8.5 MISSING PERSONS. In the case of any benefit payable to a person under
this Plan, if the Committee is unable to locate the person within six months
from the date a certified letter was mailed to such person notifying him of the
benefit, the Committee shall direct the Trustee to establish a segregated
account, as provided for in Section 8.4. This account shall share in the
allocations of Trust income or loss, as provided in Section 12.3, on a
segregated basis. The Trustee shall continue to maintain this segregated
account until: (i) the person entitled to the benefit makes application
therefor, or (ii) the benefit reverts by escheat to the state, whichever occurs
first.
8.6 INCOMPETENT PARTICIPANT OR BENEFICIARY. If the Committee determines
that any person entitled to payments under the Plan is an infant or incompetent
by reason of disability, it may cause all payments thereafter becoming due to
such person to be made to any other person for his benefit without
responsibility for the application of amounts so paid. Payments made pursuant
to this provision shall completely discharge the Employers, the Trustee and the
Committee from liability to such person.
8.7 PAYMENT TO ALTERNATE PAYEE. Distribution to an "alternate payee" (as
defined in Section 414(p)(8) of the Code) may be made without regard to the age
or employment status of the Participant provided payment is made pursuant to a
court order which the Administrator has determined to be a "qualified domestic
relations order" (within the meaning of Section 414(p)(1) of the Code) in
accordance with procedures established by the Committee. If the amount to be
distributed to an alternate payee exceeds $3,500, distribution shall not be made
without the alternate payee's written consent until the Participant attains
age 62.
8.8 DIRECT TRUSTEE-TO-TRUSTEE TRANSFER.
(a) GENERAL RULE. This Section 8.8 applies to distributions made
on or after January 1, 1993. Notwithstanding any provisions of the Plan to
the contrary that would otherwise limit a Distributee's election under this
Section 8.8, a Distributee may elect, at the time and in the 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) DEFINITIONS.
(i) "Eligible Rollover Distribution" means any distribution of
all or any portion of the balance to the credit of the Distributee, except that
an Eligible Rollover Distribution does not include: any distribution that is
one of a
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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; any
distribution to the extent such distribution is required under Section 401(a)(9)
of the Code; and the portion of any distribution that is not includable in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(ii) "Eligible Retirement Plan" means an individual retirement
account described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in Section 401(a) of
the Code, that accepts the Distributee's Eligible Rollover Distribution.
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.
(iii) "Distributee" means an Employee or former Employee. In
addition, the term "Distributee" means 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 with regard to the interest of the spouse
or former spouse.
(iv) "Direct Rollover" means a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
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ARTICLE IX
WITHDRAWALS AND LOANS
9.1 WITHDRAWALS ON ACCOUNT OF FINANCIAL HARDSHIP.
(a) Withdrawals on account of financial hardship shall be permitted
only in accordance with this Section 9.1 and shall be permitted from the vested
portion of any Account of a Participant under this Plan. Withdrawals from the
Participant's Salary Deferral and Matching Accounts shall be limited to the
amount of Salary Deferral and Matching Contributions. No amount attributable to
income earned on such Salary Deferral or Matching Contributions made under this
Plan may be withdrawn on account of such hardship. Withdrawals on account of
financial hardship shall be permitted only if the withdrawal is necessary in
light of an immediate and heavy financial need of the Participant as described
in paragraph (b), below, and if the withdrawal is necessary to satisfy the need
of the Participant as set forth in paragraph (c), below. The decision of the
Committee as to the amount, if any, which may be withdrawn shall be final and
binding on all interested parties.
(b) IMMEDIATE AND HEAVY FINANCIAL NEED. For purposes of this
Section 9.1, a distribution will be deemed to be made on account of an immediate
and heavy financial need of the Participant if the distribution is on account
of:
(i) Expenses for medical care previously incurred by the
Participant, his spouse or dependents as necessary for these persons to obtain
medical care;
(ii) The payment of tuition and related educational expenses for
the next 12 months of post-secondary education for the Participant, his spouse,
children, or dependents;
(iii) Costs directly related to the purchase of a Participant's
principal residence;
(iv) Payments necessary to prevent eviction of the Participant
from his principal residence or foreclosure on his principal residence;
(v) The payment of funeral expenses for the Participant's
immediate family;
(vi) The payment of expenses incurred by a Participant due to a
natural disaster; or
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(vii) Other expenses which the Commissioner of the Internal
Revenue Service indicates will be deemed to be made on account of such need.
In addition, any Participant may apply in writing to the Committee to determine
that an expense of the Participant constitutes an immediate and heavy financial
need. The Committee shall make such determination on the basis of objective
criteria adopted by the Committee and shall apply such criteria on a
nondiscriminatory basis.
(c) NECESSARY TO SATISFY NEED. For purposes of this Section 9.1, a
distribution will be treated as necessary to satisfy an immediate and heavy
financial need only if the criteria in either (i) or (ii), below, are satisfied.
(i) CERTIFICATION BY PARTICIPANT. The Committee reasonably
relies on the Participant's certification that the amount of the distribution is
not in excess of the amount required to relieve the immediate and heavy
financial need of the Participant and the need cannot be satisfied:
(A) Through reimbursement or compensation by insurance or
otherwise;
(B) By reasonable liquidation of the Participant's assets,
to the extent such liquidation would not itself cause an immediate and heavy
financial need;
(C) By cessation of elective deferral contributions
(including Salary Deferral Contributions under this Plan) under plans maintained
by an Employer;
(D) By other distributions or nontaxable (at the time of
the loan) loans from plans maintained by an Employer or any other employer; or
(E) By borrowing from commercial sources on reasonable
commercial terms in an amount sufficient to satisfy the need.
Assets owned by a Participant's spouse or minor children that are reasonably
available to the Participant shall be considered resources of the Participant.
(ii) SAFE HARBOR. All of the following conditions are satisfied:
(A) The Participant certifies that the distribution is not
in excess of the amount of the Participant's immediate and heavy financial need;
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(B) The Participant has obtained all other distributions
and all nontaxable (at the time of the loan) loans currently available under
this Plan and all plans maintained by an Employer;
(C) The Participant shall not be permitted to make elective
deferral contributions or after-tax employee contributions to any qualified or
nonqualified plan of an Employer (including cafeteria plans within the meaning
of Section 125 of the Code), except for mandatory employee contributions to a
defined benefit plan of an Employer and contributions to health or welfare plans
of an Employer, including health or welfare plans that are part of a cafeteria
plan, within 12 months after the hardship withdrawal;
(D) The Participant's Salary Deferral Contributions made in
the calendar year following a withdrawal on account of a financial hardship
shall not exceed $7,000 (or such other amount determined by applying the
cost-of-living adjustment factor prescribed by the Secretary of the Treasury
under Section 415(d) of the Code, in accordance with the manner prescribed by
the Secretary), reduced by the Participant's Salary Deferral Contributions which
were made in the calendar year of the hardship withdrawal.
9.2 LOANS TO PARTICIPANTS. The Committee shall administer the loan
program under the Plan, and shall have the authority to establish uniform and
nondiscriminatory rules (and to modify and change such rules) governing the
amount of the loans and the circumstances under which such loans shall be made.
Upon application of a Participant to the Committee, the Committee shall direct
the Trustee to make loans to the Participant on the following basis:
(a) AVAILABILITY OF LOANS. Loans shall be available to all active
Participants and those inactive Participants who are "parties in interest" as
defined in Section 3(14) of ERISA. An active Participant may not have more than
two loans outstanding at any one time.
(b) AMOUNT OF LOAN. A loan to a Participant (when added to the
outstanding balance of all other loans from this Plan and any other qualified
plan maintained by an Employer) shall not be in an amount that exceeds the
lesser of:
(i) $50,000 reduced by the excess, if any, of:
(A) The highest outstanding balance of loans from the Plan
during the one year period ending on the day before the date such loan is made,
over
(B) The outstanding balance of loans from the Plan on the
date such loan is made; or
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(ii) 50% of the amount of the Participant's vested Account as of
the date of the origination of the loan.
Notwithstanding the foregoing, if the Participant requests a loan of less than
$1,000, or if the maximum loan permitted under this paragraph (b) would be less
than $1,000, no loan shall be made.
(c) LOAN REQUEST. The Participant shall submit an application to the
Committee indicating the name of the Participant and the amount of the loan
requested.
(d) LOAN APPROVAL. A loan requested by a Participant shall be
approved by the Committee if the Committee determines that the amount of the
loan satisfies the requirements of paragraph (b), above, the loan is adequately
secured, and, in the case of an active Participant, the Participant has agreed
to repay the loan through payroll deduction. The Committee shall have the full
authority to approve or deny the application, and its action shall be final.
(e) INTEREST RATE. Each loan shall bear a reasonable rate of
interest selected by the Committee, which shall provide the Trust with a return
commensurate with the interest rates charged by persons in the business of
lending money for loans which would be made under similar circumstances.
(f) COLLATERAL. Each loan shall be made and secured by collateral
consisting of 50% of the Participant's vested Account as of the date of the
origination of the loan, supported by the Participant's collateral promissory
note for the amount of the loan, made payable to the Trustee. The Committee may
require additional security for the loan if it determines such security is
necessary in order for the loan to be adequately secured.
(g) TERM OF LOAN. The term of a loan shall not exceed five years,
unless the loan is used to acquire a dwelling unit which, within a reasonable
period of time (determined at the time the loan is made), is to be used as the
principal residence of the Participant, and, except as provided by the Secretary
of the Treasury, shall require substantially level amortization of the loan
(with payments not less frequently than quarterly) over its term.
(h) DEFAULT. If any loan made under this Section 9.2 to a
Participant is not repaid in accordance with its terms, the loan shall be in
default. The Committee shall deduct the total amount thereof, including
interest thereon, from any distribution of Trust assets to which the Participant
or his Beneficiary may be entitled to receive. If the Participant's Account is
not sufficient to pay the remaining balance of any such loan, he shall be liable
for any balance still due, and shall continue to make payments to the Trustee.
No distribution from the Trust shall be made to any Participant or Beneficiary
of such Participant until all loans, including interest thereon, have been
repaid.
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(i) STATEMENT. Every loan applicant shall receive a clear statement
of the charges involved in each loan transaction, including the dollar amount
and annual interest rate of the finance charge. The statement shall be prepared
in accordance with the Truth-in-Lending Law (P.L. 90-321).
(j) SOURCE OF LOANS. All loans shall be made to the Participant from
his individual Account in the Trust and shall be charged against such Account.
Interest and principal repayments shall be added to such Account.
(k) NO OWNER-EMPLOYEE LOANS. Notwithstanding the foregoing
provisions of this Section 9.2, no loan shall be made to a Participant who is an
"owner-employee" within the meaning of Section 4975(d) of the Code.
(l) Suspension of Loan Repayments. Loan repayments will be suspended
under this Plan as permitted under Section 414(u) of the Code.
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ARTICLE X
BENEFICIARIES
10.1 DESIGNATION. A Participant shall have the right to designate, on
forms provided by the Administrator, a Beneficiary or Beneficiaries to receive
the benefits (reduced by any security interest held by the Plan by reason of a
loan outstanding to the Participant) provided by the Plan in the event of his
death and shall have the right to revoke such designation or to substitute
another Beneficiary or Beneficiaries at any time. Notwithstanding the preceding
sentence, a married Participant's initial designation of a Beneficiary or change
in Beneficiary designation to someone other than or in addition to his Eligible
Spouse shall not be effective unless the Eligible Spouse consents in writing to
such designation, such designation names a Beneficiary which may not be changed
without further spousal consent (or the consent of the Eligible Spouse expressly
permits designations by the Participant without any requirement of further
consent by the Eligible Spouse), the Eligible Spouse's consent acknowledges the
effect of such election and is witnessed by a Plan representative or a notary
public, or it is established to the satisfaction of a Plan representative that
spousal consent cannot be obtained because there is no Eligible Spouse, or that
the Eligible Spouse cannot be located. In addition, no spousal consent is
necessary if the Participant has been legally separated or abandoned within the
meaning of local law and the Participant provides the Plan representative with a
court order to that effect so long as such court order does not conflict with a
qualified domestic relations order.
10.2 ABSENCE OF VALID BENEFICIARY DESIGNATION. If, upon the death of a
Participant, former Participant or Beneficiary, there is no valid Beneficiary
designation on file with the Administrator, the Committee shall designate the
following Beneficiary or Beneficiaries, in order of priority:
(a) The surviving spouse;
(b) Surviving issue, including adoptees, by right of representation;
(c) Surviving parents, in equal shares;
(d) The Participant's estate.
The determination of the Committee as to which persons, if any, qualify within
the categories listed above shall be final and conclusive upon all persons.
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ARTICLE XI
ESTABLISHMENT OF TRUST
11.1 TRUST AGREEMENT. Contributions made by the Employers and all other
assets of this Plan shall be held in trust under a Trust Agreement. The Company
will enter into a Trust Agreement with the Trustee for the administration of the
Trust which shall contain the assets of the Plan. The Trustee shall not be
responsible for the administration of this Plan, but only for the Trust
established pursuant to this Plan.
11.2 TRUST AGREEMENT PART OF PLAN. The Trust Agreement shall be deemed to
be a part of this Plan, and any rights or benefits accruing to any person under
this Plan shall be subject to all of the relevant terms and provisions of the
Trust Agreement, including any amendments. In addition to the powers of the
Trustee set forth in the Trust Agreement, the Trustee shall have any powers,
express or implied, granted to it under the Plan.
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ARTICLE XII
INVESTMENT FUNDS AND VALUATION
12.1 INVESTMENT OF ACCOUNTS. The Plan is intended to satisfy the
requirements of Section 404(c) of ERISA. The Committee or its designee shall
select at least three separate funds among which Participants may direct the
investment of their Accounts, as provided below. The Committee may change the
funds from time to time as it deems appropriate, provided that at all times at
least one fund is invested in products which is low risk and a fund invested
primarily in shares of stock of the Louisiana-Pacific Corporation. Any such
change in funds shall be communicated to Participants. The Committee shall
direct the Trustee to invest any amounts awaiting investment in a short-term
investment fund.
(a) On joining the Plan as a Participant, the Participant may direct
the Committee as to the investment of his Accounts among the investment funds
available. The allocation of his Account among the funds shall be in accordance
with rules established by the Plan Administrator.
(b) As of each Election Date, a Participant may change the investment
of his Account and the investment of his future contributions by reallocating
the funds among the investment choices then available in accordance with rules
established by the Plan Administrator.
(c) If a Participant fails to choose among investment funds, all
contributions made on his behalf and the balance in his Account shall be
invested in the guaranteed interest investment fund or similar fund.
(d) All directions and changes of investment direction shall be on
forms provided by the Plan Administrator and shall be made within the time
prescribed by the Committee in order to take effect as of the next Election Date
following the Committee's receipt of the appropriate forms executed by the
Participant.
12.2 FIBREBOARD COMMON STOCK FUND. At the discretion of the Committee, the
Plan may acquire and hold Class A Common Stock of the Fibreboard Corporation
("Company Stock"). Participants may elect to invest amounts held in their
Account in units of a Company Stock fund ("Company Common Stock Fund")
established by the Trustee pursuant to Section 12.1 of the Plan subject to such
restrictions and administrative procedures as are imposed by the Committee,
pursuant to its discretionary authority to administer and interpret the Plan.
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12.3 PURCHASE PRICE. All acquisitions and sales of Company Stock by the
Company Common Stock Fund will be effected at the prevailing market price.
12.4 VOTING AND TENDER OFFERS.
(a) A Participant may direct voting of the shares of Company Common
Stock underlying the Participant's interest in the Company Common Stock Fund.
The Trustee will vote such shares in accordance with the directions of
Participants, as communicated in writing to the Trustee.
(i) A Participant whose Account is invested in the Company
Common Stock Fund will be notified by the Trustee (or by the Company, pursuant
to its normal communications with shareholders) of each occasion for the
exercise of voting rights, within a reasonable time before those voting rights
are to be exercised. This notification will include all proxy statements and
other information distributed by the Company to shareholders generally,
regarding the exercise of voting rights.
(ii) To the extent that a Participant fails to direct the
Trustee, in whole or in part, as to the exercise of voting rights with respect
to any Company Common Stock underlying the Participant's interest in the Company
Common Stock Fund, those shares will be voted in the same proportion as the
shares for which voting instructions have been received.
(b) Subject to (b)(iii) below, if the Trustee receives a tender offer
to buy Company Common Stock held by the Trustee, a Participant may direct tender
of the shares of Company Common Stock underlying the Participant's interest in
the Company Common Stock Fund. The Trustee will tender such shares in
accordance with the directions of Participants, as communicated in writing to
the Trustee.
(i) All Participants entitled to tender Company Common Stock
held by the Company Common Stock Fund will be so notified by the Trustee (or by
the Company) within a reasonable time before the right to tender is to be
exercised. This notification will include information received by the Trustee
as shareholder, or distributed by the Company to shareholders generally,
regarding their right to tender.
(ii) To the extent that a Participant fails to direct the
Trustee, in whole or in part, to tender Company Common Stock underlying the
Participant's interest in the company Common Stock Fund, those shares will not
be tendered.
(iii) The Trustee will not permit Participants to direct the
tender of company Common Stock, to the extent that the receipt or holding of the
property offered in exchange for the shares would violate any applicable law,
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including ERISA. The Committee will make investment decisions regarding any
non-cash property received by the Company Common Stock Fund as a result of a
tender.
(c) DEEMED PARTICIPANT. For purposes of this Article XII, the
Beneficiary of a deceased Participant will be treated as though he was a
Participant.
12.5 TRANSFER FROM LOUISIANA-PACIFIC PLAN. Assets transferred to this Plan
from the Louisiana-Pacific Employee Stock Ownership Trust will be invested
initially in the Company stock fund to the extent invested in Company stock and
will be invested in the Louisiana-Pacific Corporation stock fund to the extent
invested in Louisiana-Pacific Corporation stock, with any remaining assets
invested according to Participant directions as provided herein. Thereafter the
transferred assets will be subject to Participant investment directions to the
same extent as other assets held in Retirement Accounts.
12.6 VALUATION OF ACCOUNTS.
(a) Within 60 days after each Valuation Date and within 60 days after
the removal or resignation of the Trustee, the Trustee shall determine the fair
market value of the assets of the Trust as of the Valuation Date (or the close
of the shorter period ending with such resignation or removal). As of any
Valuation Date, and before allocating Employer contributions for the Plan Year,
the Trustee shall allocate the increment of Trust earnings to (or, as the case
may be, charge the losses against) the respective Accounts of the Participants
in proportion to the balances of such Accounts as of the most recent prior
Valuation Date.
(b) Notwithstanding the foregoing provisions of paragraph (a), with
respect to any amounts in a Participant's Salary Deferral Account, the Trustee
shall determine the fair market value of the assets as of each Valuation Date,
and the balance of each Participant's Salary Deferral Account shall be adjusted
as of the Valuation Date to reflect income, gains and losses of such Salary
Deferral Account as of the Valuation Date.
(c) The value of the Account of a Participant on any date shall be
the total of the Participant's balance in his or her Account as of the Valuation
Date coincident with or immediately preceding that date, increased by any
distributions received and distributions made after such Valuation Date and
before the date on which the value of the Account is to be determined.
12.7 INDIVIDUAL STATEMENTS. On not less than a quarterly basis,
Participants shall receive a written statement of account showing applicable
beginning account balances, contributions, disbursements, income (or loss),
ending account balances, and other such information as may be required by ERISA.
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12.8 RULES OF COMMITTEE. The Committee may establish such rules as it
deems necessary to carry out the provisions of this Article XII.
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ARTICLE XIII
PLAN FIDUCIARIES AND ADMINISTRATION
13.1 NAMED FIDUCIARIES. The authority to control and manage the operation
and administration of the Plan is vested in the named fiduciaries specified
herein. Each named fiduciary shall be responsible solely for the tasks
allocated to it. No fiduciary shall have any liability for a breach of
fiduciary responsibility of another fiduciary with respect to the Plan and
Trust, unless it participates knowingly in the breach; has actual knowledge of
the breach and fails to take reasonable remedial action to remedy such breach;
or, through its negligence in performing its own specific fiduciary
responsibilities, which give rise to its status as a fiduciary, it has caused
another fiduciary to commit a breach of fiduciary responsibility.
13.2 FIDUCIARY STANDARD. Each named fiduciary and every other fiduciary
under the Plan shall discharge its duties with respect to the Plan solely in the
interests of the Participants and Beneficiaries; and
(a) For the exclusive purpose of providing benefits to Participants
and their Beneficiaries and defraying reasonable expenses of administering the
Plan;
(b) 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 a like
character and with like aims;
(c) In accordance with the documents and instruments governing the
Plan, insofar as these are consistent with the provisions of Title I of ERISA.
13.3 MULTIPLE DUTIES AND ADVISORS. Any person or group of persons may
serve in more than one fiduciary capacity with respect to the Plan. A named
fiduciary, or a fiduciary designated by a named fiduciary in accordance with the
terms of the Plan, may employ one or more persons to render advice with regard
to any responsibilities such fiduciary has under the Plan.
13.4 ALLOCATION AND DELEGATION OF FIDUCIARY DUTIES. Each named fiduciary
may allocate its fiduciary duties among its members or may delegate its
responsibilities to persons who are not named fiduciaries with respect to the
specific responsibility delegated. Any such allocation or delegation shall be
in writing and shall be made a permanent part of the records of the named
fiduciary. Such allocation or delegation shall be reviewed periodically by the
named fiduciary and shall be terminable upon such notice as the named fiduciary,
in its
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sole discretion, deems reasonable and prudent under the circumstances. An
action by the Board of Directors or the Committee allocating or delegating its
named fiduciary responsibilities shall be evidenced by a duly adopted resolution
of the Committee or of the Board of Directors.
13.5 INDEMNIFICATION. The Company shall indemnify and hold harmless the
named fiduciaries and any officers or employees of the Employers to which
fiduciary responsibilities have been delegated, from and against any and all
liabilities, claims, demands, costs and expenses, including attorneys' fees,
which may arise out of an alleged breach in the performance of their fiduciary
duties under the Plan and under ERISA, other than such liabilities, claims,
demands, costs and expenses as may result from the gross negligence or willful
misconduct of such persons. The Company shall conduct the defense of such
persons in any proceeding to which this Section 13.5, applies. The Company may
satisfy its obligation under this Section 13.5, in whole or in part, through the
purchase of a policy or policies of insurance; however, no insurer shall have
any rights against the Company arising out of this Section 13.5.
13.6 COSTS AND EXPENSES. The costs and expenses of the named fiduciaries
and the Trustees and the administrative expenses and expenses relating to the
Trust's investment vehicles shall be paid by the Company.
13.7 ADMINISTRATIVE COMMITTEE.
(a) The Committee shall consist of two or more persons and shall have
as its officers a chairman who shall be a member of the Committee, a secretary
who may be, but need not be, a member, and such other officers as may be
appointed by the Board of Directors. The members of the Committee and its
officers shall be appointed by and hold office at the pleasure of the Board of
Directors and shall serve as such without compensation.
(b) The Committee shall keep minutes of its meetings and proceedings.
Every decision made or action taken by a majority of the members then in office
shall constitute a decision or action of the Committee, and shall be final,
conclusive and binding upon all persons affected. A Committee decision or
action, under or in connection with the Plan, may be made or taken either at a
meeting held pursuant to its rules, at which a majority of the members then in
office are present and vote in favor thereof, or without a meeting if approved
and evidenced by a writing signed by a majority of the members then in office.
No Committee member shall vote on any question relating solely to himself.
13.8 PLAN ADMINISTRATOR. The Committee shall be the Administrator of the
Plan for purposes of Section 3(16) of ERISA and Section 414(g) of the Code, and
shall have complete discretion to delegate some or all of its responsibilities
under this Section 13.8. As such, the Committee shall have the discretionary
authority to take all actions and make all decisions regarding the
administration
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of the Plan, including the discretionary authority to interpret the terms of the
Plan. Without limiting the generality of the foregoing, the Committee shall
have the discretionary authority to:
(a) Apply rules determining eligibility for participation or
benefits;
(b) Calculate service and compensation credits for benefits;
(c) Prepare employee communications material;
(d) Maintain Participants' service and employment records;
(e) Prepare reports required by government agencies;
(f) Calculate benefits;
(g) Orient new Participants regarding their rights and options under
the Plan;
(h) Collect and apply contributions as provided in the Plan;
(i) Process claims;
(j) Establish a loan program;
(k) Formulate rules and regulations necessary to administer the Plan
in accordance with its terms;
(l) Conduct final review of claims under the claims review procedure;
(m) Establish and execute the funding policy of the Plan;
(n) Invest Plan assets, if the Company has transferred responsibility
for Plan investments to the Committee pursuant to the Trust;
(o) Conduct the annual review of the funding policy and method;
(p) Amend the eligibility, vesting, distribution and investment funds
provisions of the Plan, when appropriate; and make recommendations to the Board
of Directors regarding Plan amendments, when appropriate; and
(q) Maintain the qualified and tax-exempt status of the Plan under
the Code.
52.
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13.9 CLAIMS PROCEDURES.
(a) FILING OF CLAIM. A Participant or Beneficiary who believes he is
entitled to a benefit which he has not received may file a claim in writing with
the Committee. The Committee may require a claimant to submit additional
information, if necessary, to process the claim. The Committee or its delegate
shall review the claim and render its decision within 90 days from the date the
claim is filed (or the requested additional information is submitted, if later),
unless special circumstances require an extension of time for processing the
claim. If such an extension is required, written notice of the extension shall
be furnished the claimant within the initial 90 day period. The notice shall
indicate the special circumstances requiring the extension and the date by which
the Committee expects to reach a decision on the claim. In no event shall the
extension exceed a period of 90 days from the end of the initial period.
(b) NOTICE OF CLAIM DENIED. If the Committee denies a claim, in
whole or in part, it shall provide the claimant with written notice of the
denial within the period specified in paragraph (a) above. The notice shall be
written in language calculated to be understood by the claimant, and shall
include the following information:
(i) The specific reason for such denial;
(ii) Specific reference to pertinent Plan provisions upon which
the denial is based;
(iii) A description of any additional material or information
which may be needed to clarify or perfect the request, and an explanation of why
such information is required; and
(iv) An explanation of the Plan's review procedure with respect
to the denial of benefits.
(c) REVIEW PROCEDURE. Any person whose claim has been denied, in
whole or in part, shall follow the review procedures set forth herein.
(i) A person whose claim has been denied, in whole or in part,
may request a full and fair review of the claim by the Committee by making
written request therefor within 60 days of the receipt of the notification of
denial. The Committee, for good cause shown, may extend the period during which
the request may be filed. The claimant shall be permitted to examine all
documents pertinent to the claim and shall be permitted to submit issues and
comments regarding the claim to the Committee in writing.
(ii) The Committee shall render its decision within 60 days after
receipt of the request for review, unless special circumstances (such as the
53.
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need to hold a hearing) require an extension of time for processing, in which
case the decision shall be rendered as soon as possible, but not later than 120
days after receipt of a request for review. If an extension of time is
necessary, written notice shall be furnished to the claimant before the
extension period commences.
(iii) The Committee shall decide whether a hearing shall be held
on the claim. If so, it shall notify the claimant in writing of the time and
place for the hearing. Unless the claimant agrees to a shorter period, the
hearing shall be scheduled at least 14 days after the date of the notice of
hearing. The claimant and/or his authorized representative may appear at any
such hearing.
(iv) The Committee shall send its decision on review to the
claimant in writing within the time specified in this section. If the claim is
denied, in whole or in part, the decision shall specify the reasons for the
denial in a manner calculated to be understood by the claimant, referring to the
specific Plan provisions on which the decision is based. The Committee shall
not be restricted in its review to those provisions of the Plan cited in the
original denial of the claim.
(v) If the Committee does not furnish its decision on review
within the time specified in this paragraph (c), the claim shall be deemed
denied on review.
13.10 AGENT FOR LEGAL PROCESS. The Administrator of the Plan shall be
the Plan's agent for service of legal process.
54.
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ARTICLE XIV
AMENDMENT AND TERMINATION
14.1 AMENDMENT. The Board of Directors shall have authority to amend this
Plan, at any time and from time to time, in whole or in part, by adopting a
resolution setting forth such amendment. Any such amendment shall be binding
upon all Employers. Such power to amend includes the right, without limitation,
to make retroactive amendments referred to in Section 401(b) of the Code.
However, no amendment of the Plan shall be effective to reduce the benefits of
any Participant or his Beneficiary accrued under the Plan on the effective date
of the amendment except to the extent if such a reduction is permitted by ERISA.
14.2 TERMINATION OR COMPLETE DISCONTINUANCE OF CONTRIBUTIONS. Although the
Company has established the Plan with the bona fide intention and expectation
that it will be able to make contributions indefinitely, nevertheless the
Company is not and shall not be under any obligation or liability whatsoever to
continue its contributions or to maintain the Plan for any given length of time.
An Employer may, in its sole and absolute discretion, discontinue such
contributions or terminate the Plan with respect to its Employees at any time,
in accordance with the provisions of the Plan, with no liability whatsoever for
such discontinuance or termination. The Company reserves the right to terminate
the Plan in its entirety at any time, in accordance with the provisions of the
Plan with no liability whatsoever for that discontinuance or termination. If
the Plan is terminated or partially terminated, or if contributions of an
Employer are completely discontinued, (1) the rights of all affected
Participants in their Accounts shall thereupon become nonforfeitable,
notwithstanding any other provisions of the Plan. However, the Trust shall
continue until all Participants' Accounts have been completely distributed to or
for the benefit of the Participants, in accordance with the Plan.
14.3 NONREVERSION.
(a) Except as provided in this paragraph (a), the assets of the Plan
shall never inure to the benefit of an Employer; such assets shall be held for
the exclusive purpose of providing benefits to Participants and their
Beneficiaries and for defraying the reasonable administrative expenses of the
Plan.
(i) If an Employer contribution is made by virtue of a mistake
of fact, this Section 14.3 shall not prohibit the return of such contribution
to the Employer within one year after the payment of the contribution.
(ii) If an Employer contribution is conditioned upon initial
qualification of the Plan under Section 401(a) of the Code, or any successor
55.
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provision thereto, and if the Plan does not so qualify, then this Section 14.3
shall not prohibit the return of such contribution to the Employer within one
year after the date of denial of qualification of the Plan, provided that the
application for determination is made by the time prescribed by law for filing
the Employer's return for the taxable year in which the Plan was adopted, or
such later date as the Secretary of the Treasury may prescribe.
(iii) If an Employer contribution is conditioned upon
deductibility of the contribution under Section 404 of the Code, or any
successor provision thereto, then to the extent such deduction is disallowed,
this Section 14.3 shall not prohibit the return to the Employer of such
contribution (to the extent disallowed) within one year after such disallowance
of the deduction.
(b) The Trustees shall have no right to modify or amend the Plan
retroactively in such a manner so as to reduce the benefits of any Participant
or his Beneficiary accrued under the Plan by reason of contributions made by an
Employer prior to the modification or amendment, except to the extent that such
reduction is permitted by ERISA and the Code.
56.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 LIMITATION OF RIGHTS; EMPLOYMENT RELATIONSHIP. Neither the
establishment of the Plan and the Trust, nor any modifications thereof, nor the
creation of any fund or account, nor the payment of any benefits, shall be
construed as giving to any Participant or other person any legal or equitable
right against any Employer or the Trustee except as provided in the Plan or
Trust, and in no event shall the terms of employment of any Employee or
Participant, express or implied, be modified or in any way affected by the Plan
or Trust.
15.2 TRANSFER OF ASSETS OF COMPANY; TRANSFER OF ASSETS OF PLAN.
(a) If the Company merges or consolidates with or into a corporation,
or if substantially all of the assets of the Company are transferred to another
business, the Plan hereby created shall terminate on the effective date of such
merger, consolidation or transfer. However, if the surviving corporation
resulting from such merger or consolidation, or the business to which the
Company's assets have been transferred, adopts this Plan, it shall continue and
such corporation or business shall succeed to all rights, powers and duties of
the Company hereunder. The employment of any Employee who continues in the
employ of such successor corporation or business shall not be deemed to have
been terminated for any purpose hereunder.
(b) In no event shall this Plan be merged or consolidated with any
other plan, nor shall there be any transfer of assets or liabilities from this
Plan to any other plan, unless immediately after such merger, consolidation or
transfer, each Participant's benefits, if such other plan were then to
terminate, are at least equal to or greater than the benefits to which the
Participant would have been entitled, had this Plan been terminated immediately
before such merger, consolidation, or transfer.
15.3 SPENDTHRIFT PROVISION.
(a) Except as otherwise provided in paragraph (b) below, neither any
Employer nor the Trustee shall recognize any transfer, mortgage, pledge,
hypothecation, order, or assignment by any Participant or Beneficiary of all or
part of his interest hereunder, except a transfer pursuant to a "qualified
domestic relations order" within the meaning of Section 414(p) of the Code or
Section 303(d) of the Retirement Equity Act of 1984, as amended. Such interest
shall not otherwise be subject in any manner to transfer by operation of law.
Such interest shall be exempt from the claims of creditors or other claimants
and from all orders, decrees, levies, garnishments and/or executions and other
legal or
57.
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equitable processes or proceedings against such Participant or Beneficiary to
the fullest extent permitted by law.
(b) If any Participant's participation in the Plan terminates at a
time when he owes money to the Trust, as a result of loans made to him pursuant
to Section 9.2, the Committee shall direct payment to the Trust from his
Accounts, and, if necessary, the Committee may direct payment from other
collateral on any amount so owing.
15.4 APPLICABLE LAW; SEVERABILITY. The Plan hereby created shall be
construed, administered and governed in all respects in accordance with ERISA
and the laws of the State of California; provided, however, that if any
provision of this Plan is susceptible of more than one interpretation, such
interpretation shall be given thereto as is consistent with the Plan being a
qualified employees' profit sharing plan and a qualified cash or deferred
arrangement under the provisions for qualification set forth in the Code. If
any provision of this Plan shall be held by a court of competent jurisdiction to
be invalid or unenforceable, the remaining provisions shall continue in full
force and effect.
15.5 INCORPORATION OF TRUST AGREEMENT PROVISIONS. The relevant provisions
of the Trust Agreement regarding: (a) the exclusive benefit of Participants and
their Beneficiaries, (b) amendment, (c) termination, (d) other employers,
(e) California law, (f) headings, gender and number, and (g) nonalienation are
hereby incorporated into this Plan and are equally applicable to the Plan and to
the Trust, which Plan and Trust together shall constitute the entire Plan as
defined in the Code.
15.6 CHANGE OF ADDRESS. Each Participant, former Participant, pensioner,
Beneficiary and dependent shall notify the Administrator in writing of each
change in his post office address. Any communication, statement or notice to
such person by an Employer, the Administrator, the Committee or the Trustee in
connection with the Plan shall be sufficiently given or furnished if sent to
such person by first class mail, postage prepaid, addressed to him at his last
post office address as disclosed by the records of the Administrator, and
neither the Employers, the Administrator, the Committee nor the Trustee shall
have any obligation to search for, or ascertain the whereabouts of, any such
person.
15.7 DISQUALIFICATION OF PLAN. If, after initial qualification, it is
finally determined that the plan and the trust of any Employer no longer meet
the requirements of Sections 401(a) and 501(a) of the Code, such Employer will
no longer participate in this Plan and Trust as of the date of disqualification,
and the assets of the Trust allocable to the Employer shall be segregated as
soon as possible after the date of final determination of disqualification and
held as a separate fund.
58.
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15.8 Military Service. Notwithstanding any provision of this Plan to the
contrary, contributions, benefits and service credit, with respect to qualified
military service, will be provided in accordance with Section 414(u) of the
Code.
59.
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ARTICLE XVI
TOP-HEAVY RULES
16.1 GENERAL RULE. Notwithstanding anything in this Plan to the contrary,
the provisions of this Article XVI will apply in the event that the Plan is
determined to be Top-Heavy.
16.2 DEFINITIONS. For purposes of this Article XVI:
(a) "Determination Date" means, in the case of the first Plan Year,
the last day of such Plan Year, or, in the case of any other Plan Year, the last
day of the preceding Plan Year. When more than one plan is aggregated, the
determination of whether the plans are Top-Heavy shall be made at a time
consistent with regulations issued by the Secretary of the Treasury.
(b) "Key Employee" means an Employee or former Employee and his
Beneficiaries who, within the meaning of Section 416(i) of the Code and the
regulations thereunder, is or at any time during the four preceding Plan Years
has been:
(i) An officer of an Employer whose annual Compensation exceeds
50% of the amount in effect under Section 415(b)(1)(A) of the Code for any such
Plan Year;
(ii) One of the ten Employees whose Compensation from an Employer
exceeds the limitation in effect under Section 415(c)(l)(A) and who owns or is
considered as owning more than a 1/2% ownership interest and one of the ten
largest percentage ownership interests in an Employer;
(iii) A 5% owner of an Employer; or
(iv) A 1% owner of an Employer having an annual Compensation of
more than $150,000.
For purposes of this definition, no more than 50 Employees (or, if less
than 50, either three Employees or ten percent of all Employees, whichever is
greater) shall be treated as officers. For purposes of determining the number
of officers taken into account, Employees described in Section 414(q)(8) of the
Code shall be excluded. In addition, for purposes of determining ownership
percentages hereunder, the constructive ownership rules of Section 318 of the
Code shall apply as provided by Section 416(i)(l)(B) of the Code. For purposes
of paragraph (ii) above, if two Employees have the same interest in an Employer,
the Employee having greater annual Compensation from the Employer shall be
treated as
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having a larger interest. Beneficiaries of Key Employees shall be considered
Key Employees.
(c) "Non-Key Employee" means any Employee who is not a Key Employee.
(d) "Permissive Aggregation Group" means any other plans which the
Company, in its discretion, elects to aggregate with the Required Aggregation
Group, provided that the resulting group of plans satisfies Sections 401(a)(4)
and 410 of the Code.
(e) "Required Aggregation Group" means (i) each plan of an Employer
in which a Key Employee participates (regardless of whether the Plan has
terminated), and (ii) each other plan of an Employer which enables any plan
described in clause (i), above, to meet the requirements of Section 401(a)(4) or
410 of the Code.
(f) "Top-Heavy" means a plan in which, as of the Determination Date,
the Top-Heavy Ratio exceeds 60%. The determination of whether a plan is
Top-Heavy shall be made in accordance with Section 416(g) of the Code.
(g) "Top-Heavy Ratio" means for this Plan or the Required Aggregation
Group or Permissive Aggregation Group, as applicable, the fraction, the
numerator of which is the sum of the account balances under the aggregated
defined contribution plans of all Key Employees as of the Determination Date
(including any part of any account balance distributed in the five-year period
ending on the Determination Date) and the present value of accrued benefits
(including any part of any accrued benefit distributed in the five-year period
ending on the Determination Date) under the aggregated defined benefit plans of
all Key Employees as of the Determination Date, and the denominator of which is
the sum of all account balances (including any part of any account balance
distributed in the five-year period ending on the Determination Date) under the
aggregated defined contribution plans for all Participants and the present value
of accrued benefits under the defined benefit plans (including any part of any
accrued benefit distributed in the five-year period ending on the Determination
Date) for all Participants as of the Determination Date, determined in
accordance with Section 416 of the Code and the regulations thereunder. The
accrued benefit of a Participant other than a Key Employee shall be determined
under (a) the method, if any, that uniformly applies for accrual purposes under
all defined benefit plans maintained by an Employer, or (b) if no such method
exists, as if such benefit accrued not more rapidly than the slowest accrual
rate permitted under the fractional rule of Section 411(b)(1)(C) of the Code.
61.
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16.3 MINIMUM CONTRIBUTION REQUIREMENT.
(a) Notwithstanding anything in this Plan to the contrary, and
subject to the limitations set forth in paragraphs (b) and (c) below, in any
Plan Year in which the Plan is Top-Heavy, the Employers shall contribute an
additional amount so as to provide allocations for each Non-Key Employee who is
employed on the last day of the Plan Year (whether or not such Non-Key Employee
is otherwise a Participant) of Employer contributions, exclusive of Salary and
Matching Contributions, under this Plan which equal five percent of the
Participant's Compensation.
(b) The percentage minimum contribution required under paragraph (a),
above, shall in no event exceed the percentage at which contributions are made
(or required to be made) under the Plan for the Plan Year for the Key Employee
for whom such percentage is the highest for the Plan Year. In determining the
highest rate of contribution applicable to a Key Employee, amounts elected to be
deferred under a qualified Section 401(k) arrangement shall be counted for
purposes of Section 416 of the Code.
(c) No minimum contribution will be required for a Participant under
this Plan for any Plan Year if an Employer maintains another qualified plan
under which a minimum benefit or contribution is being accrued or made for such
Participant in accordance with Section 416(c) of the Code.
16.4 MINIMUM VESTING REQUIREMENTS. In each Plan Year in which the Plan is
Top-Heavy, a Participant's nonforfeitable interest shall be determined under a
schedule which is not less favorable than the following:
Completed Years Vested
of Service Percentage
--------------- ----------
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
Any change in the Plan's vesting schedule resulting from a change in the Plan's
Top-Heavy status shall be made in accordance with Section 7.5 of the Plan.
62.
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16.5 ADJUSTMENTS TO LIMITATIONS ON CONTRIBUTIONS AND BENEFITS. If the Plan
becomes Top-Heavy, (a) Sections 415(e)(2)(B) and (e)(3)(B) of the Code shall be
applied by substituting "1.0" for "1.25" and (b) Section 415(e)(6)(B)(i) of the
Code shall be applied by substituting "$41,500" for "$51,875."
IN WITNESS WHEREOF, the Company has caused this Plan to be effective
the 16th day of April, 1997.
FIBREBOARD CORPORATION
By: /s/ Garold E. Swan
--------------------------------
Its: Vice President, Finance
-------------------------------
63.
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APPENDIX "A"
TO THE
FIBREBOARD CORPORATION 401(k) RETIREMENT PLAN
Effective January 1, 1997, the following entities have adopted the
Fibreboard Corporation 401(k) Retirement Plan:
Fibreboard Corporation
Pabco Metal Corporation
Norandex, Inc.
Vytec Corporation
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APPENDIX "B"
TO THE
FIBREBOARD CORPORATION 401(k) RETIREMENT PLAN
FORM OF BENEFITS OF DISTRIBUTIONS
FOR FORMER EMPLOYEES OF OKLAHOMA BETTER HOMES, INC.
WHO PARTICIPATED IN THE OKLAHOMA BETTER HOMES, INC.
SAVINGS PLAN AND FORMER EMPLOYEES OF STUCCO STONE
PRODUCTS WHO PARTICIPATED IN THE STUCCO STONE PRODUCTS
401(K) RETIREMENT PLAN
The provisions of this Appendix B shall apply only to those
Participants who had one or more account balances outstanding under the Oklahoma
Better Homes, Inc. Savings Plan or the Stucco Stone Products 401(k) Retirement
Plan on the Merger Date and shall, as supplemented by the provisions of Article
VIII of the Plan, govern all distributions made to those Participants (or their
surviving Spouses or Beneficiaries) from any Accounts maintained on their behalf
under the Plan, whether before or after such Merger Date. Except for those
Participants, no other individuals participating in the Plan from and after the
Merger Date shall be entitled to any of the benefit distribution forms provided
under this Appendix B.
B.1 DEFINITIONS. For purposes of applying the provisions of this Appendix
"B", the following definitions shall be in effect:
(a) "Annuity Contract" shall mean a paid-up, non-transferable annuity
contract issued by an insurance company qualified to do business in the State of
California. Any annuity benefits to which a Participant (or his/her surviving
Spouse or Beneficiary) is entitled under this Plan shall be provided under an
Annuity Contract purchased by the Administrator with the balance credited to the
Participant's Accounts at the time of such purchase. The amount of such monthly
benefit shall be determined in accordance with the annuity purchase rates in
effect at the time for the Annuity Contract. The purchase of the Annuity
Contract shall be effected immediately prior to the date benefits are to
commence under the Plan, and the purchased Annuity Contract shall be distributed
to the Participant as soon as practicable.
(b) "Annuity Starting Date" shall mean the first day of the first
period for which an amount is payable as an annuity or, in the case of a benefit
not payable in the form of an annuity, the first day on which all the events
have occurred which entitle the Participant to such benefit.
(c) "Joint and Last Survivor Life Expectancy" shall mean the joint
and last survivor life expectancy calculated for the Participant and his/her
Spouse or Beneficiary in accordance with the expected return multiples in Tables
V and VI of
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Regulation Section 1.72-9. Unless otherwise elected by the Participant (or, if
applicable, his/her Spouse or Beneficiary) prior to the time the distribution of
benefits is required to begin under the Plan, life expectancies shall be
recalculated annually. Such election shall be irrevocable as to the Participant
(or his/her Spouse) and shall apply to all subsequent years. However, the life
expectancy of a non-spouse Beneficiary shall not be recalculated.
(d) "Life Expectancy" shall mean the life expectancy calculated for
the Participant or his/her surviving Spouse in accordance with the expected
return multiples in Tables V and VI of Regulation Section 1.72-9. Unless
otherwise elected by the Participant (or, if applicable, his/her Spouse) prior
to the time the distribution of benefits is required to begin under the Plan,
life expectancies shall be recalculated annually. Such election shall be
irrevocable as to the Participant (or his/her Spouse) and shall apply to all
subsequent years. However, the life expectancy of a non-spouse Beneficiary
shall not be recalculated.
(e) "Qualified Joint and 50% Survivor Annuity" shall mean an
immediate annuity for the life of the Participant with a survivor annuity for
the remaining life of the surviving Spouse equal to fifty percent (50%) of the
annuity payable during the joint lives of the Participant and his/her Spouse.
Such annuity shall be the actuarial equivalent of the balance credited to the
Participant's Account at the time the Annuity Contract is purchased.
(f) "Qualified Preretirement Survivor Annuity" shall mean an annuity
for the life of the surviving Spouse of a Participant who dies before his/her
Annuity Starting Date which is the actuarial equivalent of the Spousal Balance
credited to the Participant's Account at the time the Annuity Contract is
purchased. A former spouse shall be treated as the surviving Spouse to the
extent provided under a Qualified Domestic Relations Order.
(g) "Required Beginning Date" shall have the meaning assigned to such
term in Section 8.2.
(h) "Retirement Age" shall mean the first day of the month next
following the Participant's termination of Employee status on or after his/her
attainment of age sixty-five (65).
(i) "Straight Life Annuity" shall mean an annuity payable for the
life of the Participant which is the actuarial equivalent of the balance
credited to the Participant's Accounts at the time the Annuity Contract is
purchased.
B.2 AUTOMATIC FORM OF BENEFIT.
(a) The automatic form of benefit provided to any Participant who is
married on his/her Annuity Starting Date shall be the Qualified Joint and 50%
Survivor Annuity.
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<PAGE>
(b) The automatic form of benefit provided to any Participant who is
not married on his/her Annuity Starting Date shall be a Straight Life Annuity.
(c) The automatic form of benefit provided to any married Participant
who dies before his/her Annuity Starting Date shall be the Qualified
Preretirement Survivor Annuity. The surviving Spouse may elect to have such
benefit commence at any time prior to the date the Participant would have
attained age seventy and one-half (70 1/2) and may also elect to receive the
actuarial equivalent of such benefit in any of the optional forms specified in
the applicable Appendix.
(d) The automatic form of benefit provided to any unmarried
Participant who dies before his/her Annuity Starting Date shall be a
distribution of his/her Accounts to his/her Beneficiary in any of the optional
forms specified in the applicable Appendix.
However, if the balance credited to the Participant's Accounts at the time
distribution is to commence is Three Thousand Five Hundred Dollars ($3,500.00)
or less, then the vested balance of those Accounts shall be paid to the
Participant in one lump sum payment.
B.3 OPTIONAL FORMS OF BENEFIT. In lieu of the automatic form of benefit
provided under Section C.2 above, the Participant (and, if applicable, his/her
Spouse or other Beneficiary) may, subject to the requirements of Sections C.4
through C.6, elect to receive the benefit distribution in any of the following
optional forms:
(a) Single lump sum payment;
(b) Straight Life Annuity;
The surviving Spouse may elect to receive the fifty percent (50%) vested
balance of the Participant's Accounts in a single lump sum payment in lieu of
the Qualified Preretirement Survivor Annuity. If a surviving Spouse who is
entitled to receive the Qualified Preretirement Survivor Annuity is also
designated as the Beneficiary of the remaining vested balance of the deceased
Participant's Accounts, then that Spouse may elect to receive the combined
vested balance in the form of the Qualified Preretirement Survivor Annuity or in
a single lump sum payment.
B.4 QUALIFIED JOINT AND SURVIVOR ANNUITY.
(a) WRITTEN EXPLANATION. If the balance credited to the
Participant's Accounts at the time distribution is to commence exceeds Three
Thousand Five Hundred Dollars ($3,500.00), then the Administrator shall furnish
to the Participant and his/her Spouse a written explanation of the following:
(i) the terms and conditions of the Qualified Joint and 50% Survivor Annuity,
including the circumstances under which it will be provided; (ii) the
Participant's right to make, and the effect of, an election to waive the
Qualified Joint and 50% Survivor Annuity;
B-3
<PAGE>
(iii) the rights of the Spouse with respect to such election, including the
Spouse's right to limit his/her consent to a specific Beneficiary or a specific
form of benefit; and (iv) the right to revoke an election and the effect of such
a revocation. The Administrator shall furnish the written explanation by a
method reasonably calculated to reach the attention of the Participant and
his/her Spouse no less than thirty (30) days and no more than ninety (90) days
before the Annuity Starting Date.
(b) REQUEST FOR ADDITIONAL INFORMATION. After the written
explanation is of the Qualified Joint and 50% Survivor Annuity given, a
Participant or his/her Spouse may make a written request for additional
information. Upon receipt of the written request for additional information,
the Administrator shall provide a written explanation in non-technical language
which will explain the terms and conditions of the Qualified Joint and 50%
Survivor Annuity and the financial effect upon the Participant's benefit (in
terms of dollars per benefit payment) of electing not to have benefits
distributed in accordance with the Qualified Joint and 50% Survivor Annuity.
The written explanation must be personally delivered or mailed (first class
mail, postage prepaid) to the Participant and his/her Spouse within thirty (30)
days after the date of the written request. The Administrator does not need to
comply with more than one such request by a Participant or his/her Spouse.
B.5 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY.
(a) WRITTEN EXPLANATION. The Administrator shall furnish to the
Participant and his/her Spouse a written explanation of the following: (i) the
terms and conditions of the Qualified Preretirement Survivor Annuity, including
the circumstances under which it will be provided; (ii) the Participant's right
to make, and the effect of, an election to waive the Qualified Preretirement
Survivor Annuity; (iii) the rights of the Spouse with respect to such election,
including the Spouse's right to limit his/her consent only to a specific
Beneficiary; and (iv) the right to revoke an election and the effect of such a
revocation. The Administrator shall furnish the written explanation by a method
reasonably calculated to reach the attention of the Participant within the
applicable period. The applicable period for a Participant is whichever of the
following periods ends last:
(i) the period beginning one (1) year before the date the
individual becomes a Participant and ending one (1) year after such date; or
(ii) the period beginning one (1) year before the date the
Participant's Spouse is first entitled to a Qualified Preretirement Survivor
Annuity and ending one (1) year after such date.
If such notice is given before 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), an additional notice shall be given within such
period. If a Participant ceases to be an Employee before attaining age thirty-
five (35), an
B-4
<PAGE>
additional notice shall be given within the period beginning one (1) year before
the date the Participant ceases to be an Employee and ending one (1) year after
such date.
(b) REQUEST FOR ADDITIONAL INFORMATION. After the written
explanation of the Qualified Preretirement Survivor Annuity is given, a
Participant or his/her Spouse may make a written request for additional
information. Upon receipt of a timely request for additional information, the
Administrator shall provide a written explanation in non-technical language
which will explain the terms and conditions of the Qualified Preretirement
Survivor Annuity and the financial effect upon the Spouse's benefit (in terms of
dollars per benefit payment) of electing not to have benefits distributed in
accordance with the Qualified Preretirement Survivor Annuity. The written
explanation must be personally delivered or mailed (first class mail, postage
prepaid) to the Participant or his/her Spouse within thirty (30) days from the
date of the written request. The Administrator does not need to comply with
more than one such request by a Participant or his/her Spouse.
(c) ELECTION TO WAIVE QPSA. An election to waive the Qualified
Preretirement Survivor Annuity may not be made by the Participant before the
date he/she is provided with the notice of the ability to waive the Qualified
Preretirement Survivor Annuity. A Participant's election to waive the Qualified
Preretirement Survivor Annuity which is made before the first day of the Plan
Year in which he/she reaches age thirty-five (35) shall become invalid on such
date. However, an election made by a Participant after he/she ceases to be an
Employee will not become invalid on the first day of the Plan Year in which
he/she reaches age thirty-five (35) with respect to death benefits payable from
that part of his/her Account attributable to Company Contributions made before
he/she ceased Employee status.
B.6 ELECTION OF OPTIONAL FORMS OF BENEFIT.
(a) WRITTEN EXPLANATION. If the balance credited to Participant's
Account is at the time distribution is to commence in excess of Three Thousand
Five Hundred Dollars ($3,500.00), then the Administrator shall furnish the
Participant and his/her Spouse with a written explanation of the optional forms
of retirement benefit provided under the Plan, including (without limitation):
(i) the material features and relative values of each optional form, in a manner
which complies with the notice requirements of Code Section 417(a)(3)), and (ii)
the right of the Participant and his/her Spouse to defer distribution until the
benefit is no longer immediately distributable.
(b) ELECTION. The Administrator shall furnish the written
explanation by a method reasonably calculated to reach the attention of the
Participant and his/her Spouse no less than thirty (30) days and no more than
ninety (90) days before the Annuity Starting Date. If the Participant should,
after having received the written explanation of the Qualified Joint and 50%
Survivor Annuity, affirmatively elect a form of distribution other than the
Qualified Joint and 50%
B-5
<PAGE>
Survivor Annuity or the Qualified Preretirement Survivor Annuity, then the
election shall be valid only if the consent requirements of Section 9.07(c) are
satisfied.
(c) CONSENT.
(i) REQUIREMENT OF CONSENT. Any benefit which is immediately
distributable or payable in a form other than a Qualified Joint and 50% Survivor
Annuity or a Qualified Preretirement Survivor Annuity requires the written
consent of the Participant and his/her Spouse prior to distribution. Spousal
consent will NOT be required if the Participant establishes to the satisfaction
of the Administrator that the consent of the Spouse cannot be obtained because
there is no Spouse or the Spouse cannot be located. Neither the consent of the
Participant nor the Spouse shall be required to the extent that a distribution
is required to satisfy Code Section 401(a)(9) or 415. A benefit is immediately
distributable if any part of the benefit could be distributed to the Participant
(or surviving Spouse) before the Participant attains (or would have attained if
not deceased) age sixty two (62).
(ii) FORM OF CONSENT. The consent of the Participant and, if
applicable, his/her Spouse must be made in writing and witnessed by a plan
representative or notary public. In the event the Spouse elects to waive the
Qualified Joint and 50% Survivor Annuity, the Spouse shall have the right to
limit such consent only to a specific Beneficiary or a specific form of
distribution. The Spouse can relinquish one or both of those rights. In the
event the Spouse elects to waive the Qualified Preretirement Survivor Annuity,
the Spouse shall also have the right to limit such consent only to a specific
Beneficiary but can relinquish that right. In each instance, the Spouse's
consent must acknowledge the effect of the waiver, including:
(A) the Spouse had the right to limit his/her consent only
to a specific Beneficiary or, if applicable, to a specific form of benefit,
(B) the Spouse voluntarily relinquished of one or both of
those rights, and
(C) the Spouse understands the effect such consent has upon
the benefits which would otherwise be payable to him/her under the automatic
forms of benefit in effect under the Plan.
Unless the consent of the Spouse expressly permits designations by the
Participant without a requirement of further consent by that Spouse, the
Spouse's consent shall be limited to the form of benefit, if applicable, and the
Beneficiary or Beneficiaries named in the election. A Spouse's consent shall
not be valid with respect to any other Spouse. A Participant may revoke the
prior election without his/her Spouse's consent. However, any new election to
receive a distribution in any form other than in an automatic form, as specified
in Section B.2, shall require spousal consent unless the Spouse's consent
expressly permits such election by the
B-6
<PAGE>
Participant without further consent by that Spouse. The Spouse's consent may be
revoked at any time within the Participant's election period.
(iii) TIMING OF CONSENT. The consent of the Participant or
his/her Spouse to a benefit which is immediately distributable must not be made
before the date the Participant and his/her Spouse are provided with the notice
of the ability to defer the distribution and the explanation of the optional
benefit forms. Not less than thirty (30) days nor more than ninety (90) days
prior to the date specified for distribution, the Participant (and, if
applicable, his/her Spouse) shall be provided with written information relating
to his/her right to defer such distribution in accordance with the guidelines
set forth in this Appendix B.
B.7 SPECIAL PAYMENT DATE. The Participant may elect an Annuity Starting
Date which is less than thirty (30) days after the written explanation under
Sections B.4 and B.6 is furnished to the Participant and his/her Spouse,
provided the following requirements are met: (i) the Administrator provides
information to the Participant clearly indicating that the Participant has a
right to at least a thirty (30)-day period in which to consider whether to waive
the Qualified Joint and 50% Survivor Annuity and consent to another form of
distribution; (ii) the Participant is permitted to revoke an affirmative
distribution election at least until the Annuity Starting Date or, if later, at
any time prior to the expiration of the seven (7) day period beginning with the
day after the explanation of the Qualified Joint and 50% Survivor Annuity is
provided to the Participant; (iii) the Annuity Starting Date must be a date
after the date that the explanation is provided to the Participant, but may be a
date before the date that an affirmative distribution election is made by the
Participant; and (iv) the distribution must not actually commence before the
expiration of the foregoing seven (7)-day period.
B.8 TIMING OF DEATH DISTRIBUTION. Distribution shall generally be made at
such time and in such manner as set forth in Article VIII, except as follows:
(a) If the Participant dies after distribution of his/her interest
has begun on his/her Required Beginning Date, 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 death.
(b) If the Participant dies before distribution of his/her interest
begins on his/her Required Beginning Date, then the election period of the
Beneficiary (including the surviving Spouse) shall begin on the date the
Participant dies and ends on the date benefits to such Beneficiary or Spouse
must begin pursuant to the provisions of this Section B.8. Distribution of the
Participant's entire interest shall be completed by December 31 of the calendar
year containing the fifth (5th) anniversary of the Participant's death, except
to the extent that an election is made to receive distributions in accordance
with clause (i) or (ii) below:
B-7
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(i) to the extent any portion of the Participant's interest is
payable to a Beneficiary, distribution may be made over the life or over a
period certain not greater than the Life Expectancy of that Beneficiary, with
such distribution to commence on or before December 31 of the calendar year
immediately following the calendar year in which the Participant died; or
(ii) to the extent the distribution is to be made to the
Participant's surviving Spouse, the date such distribution must begin in
accordance with clause (i) above shall not be earlier than the later of:
(A) December 31 of the calendar year immediately following
the calendar year in which the Participant died, or
(B) December 31 of the calendar year in which the
Participant would have attained age seventy and one-half (70 1/2).
(c) If the Participant has not made an election by his/her death, the
Participant's Beneficiary must elect the method of distribution no later than
the earlier of:
(i) December 31 of the calendar year in which distributions
would be required to begin under this Section B.8, or
(ii) December 31 of the calendar year containing the fifth (5th)
anniversary of the date of the Participant's death.
(d) If the Participant has no Beneficiary or if the Beneficiary does
not elect a method of distribution, distribution of the Participant's entire
interest must be completed by December 31 of the calendar year containing the
fifth (5th) anniversary of the Participant's death.
(e) For purposes of paragraphs (b) and (c) above, if the surviving
Spouse dies after the Participant but before payments to such spouse begin, the
provisions of the applicable paragraph (b) or (c) shall be applied as if the
surviving Spouse were the Participant.
B-8
<PAGE>
APPENDIX "C"
TO THE
FIBREBOARD CORPORATION 401(k) RETIREMENT PLAN
MERGER OF OKLAHOMA BETTER HOMES, INC. SAVINGS PLAN
The Oklahoma Better Homes, Inc. Savings Plan (the "Better Homes Plan")
has been merged with and into the Fibreboard Corporation 401(k) Retirement Plan
(the "Plan"), effective December 31, 1996 (the "Merger Date"). The merger of
the Plan and Better Homes Plans has been effected in accordance with the
following provisions:
C.1 TRANSFER OF ACCOUNT BALANCES. The outstanding account balances under
the Better Homes Plan were transferred to the Plan through a direct transfer
from the trust fund for the Better Homes Plan to the Trust for the Plan which
was effected on the Merger Date.
C.2 AMOUNT OF ACCOUNT BALANCE. The account balance credited to each
individual under the Better Homes Plan immediately prior to the Merger Date was
credited to the account maintained for such individual under the Plan
immediately after the Merger Date. Accordingly, the account balance maintained
under the Plan for each individual who was a participant in the Better Homes
Plan on the Merger Date was, immediately after the Merger Date, credited with a
dollar amount equal to that individual's account balance under the Better Homes
Plan immediately prior to the Merger Date.
C.3 PROTECTED BENEFITS. The terms and provisions of the Plan shall govern
the rights, benefits and entitlements of all Participants and any other
individuals who have an interest in any outstanding account balance under the
surviving Plan. The terms and provisions of the Better Homes Plan have, as of
the Merger Date, been extinguished and cease to have any force or effect.
However, any benefits accrued under the Better Homes Plan prior to the Merger
Date shall, to the extent those benefits are protected benefits under Code
Section 411(d)(6) ("Protected Benefits"), be preserved under the Plan and shall
not in any way be affected, reduced or eliminated as a result of the merger of
the Fibreboard and Better Homes Plans. The Protected Benefits for Participants
who held account balances in the Better Homes Plan as of the Merger Date
("Better Homes Participants") shall include (without limitation) the following:
(a) The Automatic Form of distribution specified in Section B.2 shall
be made available to Better Homes Participants.
C-1
<PAGE>
(b) In addition to the optional forms of benefit specified in Section
B.3, the following optional forms of benefit shall be offered to Better Homes
Participants:
(i) Qualified Joint and 66 2/3% Survivor Annuity;
(ii) Qualified Joint and 100% Survivor Annuity;
(iii) Straight Life Annuity with a period certain of five (5)
years;
(iv) Straight Life Annuity with a period certain of ten (10)
years;
(v) Straight Life Annuity with a period certain of fifteen (15)
years; and
(vi) Fixed period annuity for any period of whole months which is
not less than sixty (60) and does not exceed the joint and last survivor life
expectancy of the Participant and his/her Beneficiary (without recalculation of
such life expectancy).
Unless otherwise elected by the Participant (or, if applicable, his/her spouse)
by the time distributions are required to begin, life expectancies shall be
recalculated annually. Such election shall be irrevocable as to the Participant
(or his/her spouse) and shall apply to all subsequent years. The life
expectancy of a nonspouse Beneficiary may not be recalculated.
(c) For purposes of determining when a Better Homes Participant is
first eligible to take a distribution from the Plan, "Retirement Age" shall mean
the Participant's termination of Employee status on or after his/her attainment
of age fifty-seven (57).
C.4 INVESTMENT OF ACCOUNT BALANCE. The account balances transferred from
the Better Homes Plan to the Plan shall remain invested in the same funds in
which those accounts were invested immediately prior to the Merger Date, until
such time as the Participants file new investment directives in accordance with
the provisions of the Plan.
(a) As of the Merger Date, Participants may no longer have
contributions applied to purchase life insurance.
(b) A Participant who has a life insurance in his or her account may,
if the life insurance policy allows, pay the Trustee an amount equal to the cash
values of any insurance policy on his or her life. Such payment shall become a
part of his or her Account. Upon receiving the payment, the Trustee shall
C-2
<PAGE>
transfer ownership of the policy to the Participant. This transfer of ownership
is not a distribution from the Plan. This option shall only be available to a
Participant if the policy would, but for the sale, be surrendered by the Plan.
(c) After ceasing to be an Employee, a Participant may have the
ownership of an insurance policy on his or her life transferred to him or her
without making payment to the Trustee if permitted by such insurance policy and
if the cash values of such policy are included in the Participant's Account.
Any insurance policy transferred to the Participant for which he or she has not
made payment to the Trustee is a distribution from the Plan.
C.5 SERVICE CREDIT. Each Participant in the Plan shall, for all purposes
under the Plan, including, but not limited to, determinations regarding
eligibility to participate in the Plan and determinations regarding a
Participant's level of vesting, be credited with all Service credited to such
Participant under the Better Homes Plan immediately prior to the Merger Date.
C-3
<PAGE>
APPENDIX "D"
TO THE
FIBREBOARD CORPORATION 401(k) RETIREMENT PLAN
MERGER OF STUCCO STONE PRODUCTS 401(K) RETIREMENT PLAN
The Stucco Stone Products 401(k) Retirement Plan (the "Stucco Stone
Plan") has been merged with and into the Fibreboard Corporation 401(k)
Retirement Plan (the "Plan"), effective December 31, 1996 (the "Merger Date").
The merger of the Fibreboard and Stucco Stone Plans has been effected in
accordance with the following provisions:
D.1 TRANSFER OF ACCOUNT BALANCES. The outstanding account balances under
the Stucco Stone Plan were transferred to the Plan through a direct transfer
from the trust fund for the Stucco Stone Plan to the Trust Fund for the Plan
which was effected on the Merger Date.
D.2 AMOUNT OF ACCOUNT BALANCE. The account balance credited to each
individual under the Stucco Stone Plan immediately prior to the Merger Date was
credited to the account maintained for such individual under the Plan
immediately after the Merger Date. Accordingly, the account balance maintained
under the Plan for each individual who was a participant in the Stucco Stone
Plan on the Merger Date was, immediately after the Merger Date, credited with a
dollar amount equal to that individual's account balance under the Stucco Stone
Plan immediately prior to the Merger Date.
D.3 PROTECTED BENEFITS. The terms and provisions of the Plan shall govern
the rights, benefits and entitlements of all Participants and any other
individuals who have an interest in any outstanding account balance under the
surviving Plan. The terms and provisions of the Stucco Stone Plan have, as of
the Merger Date, been extinguished and cease to have any force or effect.
However, any benefits accrued under the Stucco Stone Plan prior to the Merger
Date shall, to the extent those benefits are protected benefits under Code
Section 411(d)(6) ("Protected Benefits"), be preserved under the Plan and shall
not in any way be affected, reduced or eliminated as a result of the merger of
the Fibreboard and Stucco Stone Plans. The Protected Benefits for Participants
who held account balances in the Stucco Stone Plan as of the Merger Date
("Stucco Stone Participants") shall include (without limitation) the following:
(a) The Automatic Form of distribution specified in Section B.2 shall
be made available to Stucco Stone Participants.
(b) In addition to the optional forms of benefit specified in Section
B.3, Stucco Stone Participants shall be offered the right to elect to receive
D-1
<PAGE>
monthly, quarterly or annual installments over a fixed reasonable period of
time, not exceeding the life expectancy of the Participant or the joint life and
last survivor expectancy of the Participant and his/her Beneficiary.
D.4 INVESTMENT OF ACCOUNT BALANCE. The account balances transferred from
the Stucco Stone Plan to the Plan shall remain invested in the same funds in
which those accounts were invested immediately prior to the Merger Date, until
such time as the Participants file new investment directives in accordance with
the provisions of the Plan.
D.5 SERVICE CREDIT. Each Participant in the Plan shall, for all purposes
under the Plan, including, but not limited to, determinations regarding
eligibility to participate in the Plan and determinations regarding a
Participant's level of vesting, be credited with all Service credited to such
Participant under the Stucco Stone Plan immediately prior to the Merger Date.
D-2
<PAGE>
APPENDIX "E"
TO THE
FIBREBOARD CORPORATION 401(k) RETIREMENT PLAN
TRANSFER OF ASSETS FROM THE GENTEK BUILDING
PRODUCTS, INC. EMPLOYEES' SAVINGS PLAN
Assets from the Gentek Employees' Savings Plan (the "Gentek Plan")
have been transferred into the Fibreboard Corporation 401(k) Retirement Plan
(the "Plan"), effective December 31, 1996 (the "Transfer Date"). The transfer
of assets into the Fibreboard Plan has been effected in accordance with the
following provisions:
E.1 TRANSFER OF ACCOUNT BALANCES. The outstanding account balances (other
than after-tax contributions) of employees hired by Norandex Inc. were
transferred to the Plan through a direct transfer from the trust fund for the
Gentek Plan to the Trust Fund for the Plan which was effected on the Transfer
Date.
E.2 AMOUNT OF ACCOUNT BALANCE. The account balance credited to such
individual under the Gentek Plan immediately prior to the Transfer Date was
credited to the account maintained for such individual under the Plan
immediately after the Transfer Date. Accordingly, the account balance
maintained under the Plan for such individual who was a participant in the
Gentek Plan on the Transfer Date was, immediately after the Transfer Date,
credited with a dollar amount equal to such individual's account balance under
the Gentek Plan immediately prior to the Transfer Date.
E.3 PROTECTED BENEFITS. The terms and provisions of the Plan shall govern
the rights, benefits and entitlements of all Participants and any other
individuals who have an interest in any outstanding account balance under the
surviving Plan. The terms and provisions of the Gentek Plan have, as of the
Transfer Date, been extinguished and cease to have any force or effect.
However, any benefits accrued under the Gentek Plan prior to the Transfer Date
shall, to the extent those benefits are protected benefits under Code Section
411(d)(6) ("Protected Benefits"), be preserved under the Plan and shall not in
any way be affected, reduced or eliminated as a result of the transfer of assets
into the Fibreboard Plan. The Protected Benefits for Participants who held
account balances in the Gentek Plan as of the Transfer Date ("Gentek
Participants") shall include (without limitation) the right to request up to
100% of the value of that portion of their Matching Contribution Account which
has been credited to their account for at least 2 years and if the Gentek
Participant is at least age 59-1/2, the withdrawal of his Salary Deferral
Account and its earnings.
E.4 INVESTMENT OF ACCOUNT BALANCE. The account balances transferred from
the Gentek Plan to the Plan shall remain invested in the same funds in
E-1
<PAGE>
which those accounts were invested immediately prior to the Transfer Date, until
such time as the Participants file new investment directives in accordance with
the provisions of the Plan.
E.5 SERVICE CREDIT. Each Participant in the Plan shall, for all purposes
under the Plan, including, but not limited to, determinations regarding
eligibility to participate in the Plan and determinations regarding a
Participant's level of vesting, be credited with all Service credited to such
Participant under the Gentek Plan immediately prior to the Transfer Date.
E-2
<PAGE>
------------------------------------------------------------
FIBREBOARD CORPORATION 401(K) RETIREMENT PLAN
(AMENDED AND RESTATED AS OF JANUARY 1, 1997)
------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
PREAMBLE..................................................................... 1
ARTICLE I DEFINITIONS................................................... 2
ARTICLE II ELIGIBILITY AND PARTICIPATION................................. 12
2.1 Service Requirements.......................................... 12
2.2 Salary Deferral Election...................................... 12
2.3 Termination of Participation.................................. 12
2.4 Leaves of Absence............................................. 13
2.5 Suspended Participation....................................... 13
ARTICLE II CONTRIBUTIONS................................................. 14
3.1 Salary Deferral Contributions................................. 14
3.2 Dollar Limit on Salary Deferral Contributions................. 15
3.3 Matching Contributions........................................ 15
3.4 Discretionary Contributions................................... 16
3.5 Retirement Contributions...................................... 17
3.6 Rollover Contributions........................................ 17
3.7 Maximum Contribution.......................................... 18
ARTICLE IV ALLOCATIONS TO PARTICIPANTS' ACCOUNTS......................... 19
4.1 Accounts...................................................... 19
4.2 Allocation of Salary Deferral Contributions................... 19
4.3 Allocation of Matching Contributions.......................... 19
4.4 Allocation of Retirement Contributions........................ 19
4.5 Allocation to Rollover Account................................ 20
ARTICLE V NONDISCRIMINATION LIMITATIONS ON CONTRIBUTIONS................ 21
5.1 Definitions................................................... 21
5.2 Percentage Limitations on Contributions....................... 25
5.3 Remedial Measures............................................. 26
5.4 Correction of Actual Deferral Percentage Test................. 26
5.5 Correction of Average Contribution Percentage Test............ 27
5.6 Compliance with Treasury Regulations.......................... 27
ARTICLE VI LIMITATIONS ON ALLOCATIONS.................................... 28
6.1 Allocation Limitation Definitions............................. 28
6.2 General Rule.................................................. 29
6.3 Participation in Defined Benefit Plan......................... 29
6.4 Excess Annual Additions....................................... 29
6.5 Aggregation of Plans.......................................... 30
i.
<PAGE>
6.6 Effective Date................................................ 30
ARTICLE VII VESTING....................................................... 31
7.1 Vesting of Accounts........................................... 31
7.2 Termination of Employment; Forfeitures........................ 32
7.3 Years of Service Disregarded for Vesting Purposes............. 33
7.4 No Divestment for Cause....................................... 33
7.5 Amendment of Vesting Schedule................................. 33
ARTICLE VIII DISTRIBUTION OF BENEFITS...................................... 34
8.1 Distributions to Participants and Beneficiaries............... 34
8.2 Minimum Distribution Rules.................................... 35
8.3 Investment of Deferred Distributions.......................... 36
8.4 Nonliability.................................................. 36
8.5 Missing Persons............................................... 37
8.6 Incompetent Participant or Beneficiary........................ 37
8.7 Payment to Alternate Payee.................................... 37
8.8 Direct Trustee-to-Trustee Transfer............................ 37
ARTICLE IX WITHDRAWALS AND LOANS......................................... 39
9.1 Withdrawals on Account of Financial Hardship.................. 39
9.2 Loans to Participants......................................... 41
ARTICLE X BENEFICIARIES................................................. 44
10.1 Designation................................................... 44
10.2 Absence of Valid Beneficiary Designation...................... 44
ARTICLE XI ESTABLISHMENT OF TRUST........................................ 45
11.1 Trust Agreement............................................... 45
11.2 Trust Agreement Part of Plan.................................. 45
ARTICLE XII INVESTMENT FUNDS AND VALUATION................................ 46
12.1 Investment of Accounts........................................ 46
12.5 Transfer From Louisiana-Pacific Plan.......................... 48
12.6 Valuation of Accounts......................................... 48
12.7 Individual Statements......................................... 48
12.8 Rules of Committee............................................ 49
ARTICLE XIII PLAN FIDUCIARIES AND ADMINISTRATION........................... 50
13.1 Named Fiduciaries............................................. 50
13.2 Fiduciary Standard............................................ 50
13.3 Multiple Duties and Advisors.................................. 50
13.4 Allocation and Delegation of Fiduciary Duties................. 50
13.5 Indemnification............................................... 51
ii.
<PAGE>
13.6 Costs and Expenses............................................ 51
13.7 Administrative Committee...................................... 51
13.8 Plan Administrator............................................ 51
13.9 Claims Procedures............................................. 53
13.10 Agent for Legal Process....................................... 54
ARTICLE XIV AMENDMENT AND TERMINATION..................................... 55
14.1 Amendment..................................................... 55
14.2 Termination or Complete Discontinuance of Contributions....... 55
14.3 Nonreversion.................................................. 55
ARTICLE XV MISCELLANEOUS PROVISIONS...................................... 57
15.1 Limitation of Rights; Employment Relationship................. 57
15.2 Transfer of Assets of Company; Transfer of Assets of Plan..... 57
15.3 Spendthrift Provision......................................... 57
15.4 Applicable Law; Severability.................................. 58
15.5 Incorporation of Trust Agreement Provisions................... 58
15.6 Change of Address............................................. 58
15.7 Disqualification of Plan...................................... 58
15.8 Military Service.............................................. 59
ARTICLE XVI TOP-HEAVY RULES............................................... 60
16.1 General Rule.................................................. 60
16.2 Definitions................................................... 60
16.3 Minimum Contribution Requirement.............................. 62
16.4 Minimum Vesting Requirements.................................. 62
16.5 Adjustments to Limitations on Contributions and Benefits...... 63
APPENDIX "A".................................................................A-1
APPENDIX "B".................................................................B-1
APPENDIX "C".................................................................C-1
APPENDIX "D".................................................................D-1
APPENDIX "E".................................................................D-1
iii.
<PAGE>
EXHIBIT 5.1
Opinion of Brobeck, Phleger & Harrison LLP
<PAGE>
Exhibit 5.1
April 15, 1997
Fibreboard Corporation
Texas Commerce Tower
2200 Ross Avenue, Suite 3600
Dallas, TX 75201
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
Fibreboard Corporation, a Delaware corporation (the "Company"), with the
Securities Exchange Commission under the Securities Act of 1933, relating to
100,000 shares of the Company's common stock, par value $0.01 (the "Common
Stock"), issuable pursuant to the Fibreboard 401(k) Retirement Plan (the
"Plan"), it is our opinion that the Common Stock, when issued and sold in
accordance with the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
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EXHIBIT 23.1
Consent of Independent Accountants
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 5, 1997
(except for Note 16, Subsequent Event, as to which the date is March 4, 1997)
included in the Fibreboard Corporation Form 10-K for the year ended December
31, 1996, and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
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Arthur Andersen LLP
Dallas, Texas
April 16, 1997
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EXHIBIT 23.2
Consent of Brobeck, Phleger & Harrison (included in Exhibit 5.1)
<PAGE>
EXHIBIT 24.1
Power of Attorney (included on pages 7-8 of the Registration Statement)
