Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
BADGER PAPER MILLS, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-0143840
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
200 West Front Street
P. O. Box 149
Peshtigo, Wisconsin 54157-0149
(Address of principal executive offices) (Zip Code)
Badger Paper Mills, Inc. Profit Sharing Plan and
Trust for Non-Union Employees
(Full title of the plan)
____________________
Miles L. Kresl, Jr. Copy to:
Vice President/Administration
Badger Paper Mills, Inc. Luke E. Sims
P. O. Box 149 Foley & Lardner
Peshtigo, Wisconsin 54157-0149 777 East Wisconsin Avenue
(715) 582-4551 Milwaukee, Wisconsin 53202-5367
(Name, address and telephone (414) 297-5680
number, including area
code, of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
Common Stock, 100,000 $14.50(1) $1,450,000.00(1) $500.00
no par value shares
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the low and high prices of Badger Paper
Mills, Inc. Common Stock as reported on the NASDAQ Stock Market
on March 8, 1996.
_________________________________
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Badger Paper Mills, Inc. (the
"Company") or the Badger Paper Mills, Inc. Profit Sharing Plan and Trust
for Non-Union Employees (the "Plan") with the Commission are hereby
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for its fiscal
year ended December 31, 1994.
2. All other reports filed by the Company with the Commission
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") since December 31, 1994.
3. The description of the Company's Common Stock contained in
its Registration Statement on Form 10 dated April 28, 1965, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Registration Statement and prior to such time as the
Company files a post-effective amendment to this Registration Statement
indicating that all such securities offered hereby have been sold, or
which deregisters all such 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 Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and By-Laws
of the Company, as amended, directors and officers of the Company are
entitled to mandatory indemnification from the Company against certain
liabilities and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding and (ii) in proceedings in which
the director or officer is not successful in the defense thereof, unless
(in the latter case only) it is determined that the director or officer
breached or failed to perform his duties to the Company and such breach or
failure constituted: (a) a willful failure to deal fairly with the
Company or its shareholders in connection with a matter in which the
director of officer had a material conflict of interest; (b) a violation
of the criminal law, unless the director or officer had reasonable cause
to believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. It should also be noted that the Wisconsin Business
Corporation Law specifically states that it is the policy of Wisconsin to
require or permit indemnification in connection with a proceeding
involving securities regulation, as described therein, to the extent
required or permitted as described above. Additionally, under the
Wisconsin Business Corporation Law, directors of the Company are not
subject to personal liability to the Company, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures
to perform any duty resulting solely from their status except in
circumstances paralleling those in subparagraphs (a) through (d) outlined
above. Additional indemnification may be provided by resolution of the
Company's Board of Directors except as prohibited by law.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits filed herewith or incorporated by reference are set
forth in the attached Exhibit Index.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "Act"), each such post-
effective amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new Registration Statement relating to
the securities offered herein, 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 Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 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.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Act, 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 Peshtigo, State of Wisconsin, as
of March 8, 1996.
BADGER PAPER MILLS, INC.
By: /s/Claude L. Van Hefty
Claude L. Van Hefty
President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of March 8, 1996, by the
following persons in the capacities indicated. Each person whose
signature appears below constitutes and appoints Claude L. Van Hefty and
Miles L. Kresl, Jr., and each of them individually, his attorneys-in-fact
and agents, 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 all exhibits thereto, and other
documents in connection therewith, with the 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 in connection therewith, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
/s/Claude L. Van Hefty President and Director
(principal executive officer)
/s/Miles L. Kresl, Jr. Vice President/Administration,
Miles L. Kresl, Jr. Corporate
Secretary and Treasurer
(principal
financial officer)
/s/George J. Zimmerman Controller (chief accounting
George J. Zimmerman officer)
/s/Edwin A. Meyer, Jr. Chairman of the Board and
Edwin A. Meyer, Jr. Director
/s/Bennie C. Burish Director
Bennie C. Burish
/s/Thomas J. Kuber Director
Thomas J. Kuber
/s/Earl R. St. John, Jr. Director
Earl R. St. John, Jr.
/s/Ralph D. Searles Director
Ralph D. Searles
The Plan. Pursuant to the requirements of the Act, the Profit
Sharing Trust Committee for Non-Union Employees, which administers the
Plan, has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Peshtigo, State of Wisconsin, as of March 8, 1996.
BADGER PAPER MILLS, INC.
PROFIT SHARING PLAN AND TRUST FOR NON-
UNION EMPLOYEES
By:/s/Miles L. Kresl, Jr.
Miles L. Kresl, Jr.
/s/Kathy M. Wesloski
Kathy M. Wesloski
/s/George J. Zimmerman
George J. Zimmerman
/s/Claude L. Van Hefty
Claude L. Van Hefty
The foregoing persons are all of the members of the Profit
Sharing Trust Committee for Non-Union Employees, which is the
administrator of the Badger Paper Mills, Inc. Profit Sharing Plan and
Trust for Non-Union Employees.
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit Page
(4.1) Badger Paper Mills, Inc. Profit Sharing
Plan and Trust for Non-Union Employees
(the "Plan")
(4.2) Amendment No. 1 to the Plan dated
November 13, 1995.
(4.3) Form of Amendment No. 2 to the Plan.
(4.4) U.S. $18,000,000 Credit Agreement by and
among the Company, NEW Riverview
Holdings, Inc., PlasTechs, Inc., and
Harris Trust and Savings Bank,
individually and as agent and PNC Bank,
Ohio National Association, dated June
30, 1993 ("Credit Agreement")
(incorporated by reference to Exhibit
(4) to the Company's Form 10-Q for the
quarter ended September 30, 1993).
(4.5) Waiver and First Amendment to Credit
Agreement dated June 30, 1993
(incorporated by reference to Exhibit
(4)(ii) to the Company's Form 10-K for
the year ended December 31, 1994).
(4.6) Second Amendment to Credit Agreement
dated March 31, 1994 (incorporated by
reference to Exhibit 4(a) to the
Company's Form 10-Q for the quarter
ended March 31, 1994).
(4.7) Third Amendment to Credit Agreement
dated August 31, 1994 (incorporated by
reference to Exhibit (4)(iv) to the
Company's Form 10-K for the year ended
December 31, 1994).
(4.8) Fourth Amendment to Credit Agreement
dated February 17, 1995, but retroactive
to December 31, 1994 (incorporated by
reference to Exhibit (4)(v) to the
Company's 10-K for the year ended
December 31, 1994).
(4.9) Fifth Amendment to Credit Agreement
dated April 28, 1995 (incorporated by
reference to Exhibit (4) to the
Company's Form 10-Q for the quarter
ended June 30, 1995).
(5.1) Opinion of Foley & Lardner
(5.2) In lieu of an opinion of counsel
concerning compliance with the
requirements of ERISA and an Internal
Revenue Service (the "IRS")
determination letter that the Plan is
qualified under Section 401 of the
Internal Revenue Code, the Registrant
hereby undertakes that the Registrant
will submit or has submitted the Plan
and any amendment thereto to the IRS in
a timely manner and has made or will
make all changes required by the IRS in
order to qualify the Plan.
(23.1) Consent of Coopers & Lybrand L.L.P.
(23.2) Consent of Foley & Lardner (contained in
Exhibit 5 hereto)
(24) Power of Attorney relating to subsequent
amendments (included on the signature
page to this Registration Statement)
BADGER PAPER MILLS, INC.
PROFIT SHARING PLAN AND TRUST
FOR NON-UNION EMPLOYEES
Effective as Amended and Restated: July 1, 1994
Drafted By:
Attorney Jeffery Mandell
BOARDMAN, SUHR, CURRY & FIELD
1 South Pinckney Street -- Suite 401
P.O. Box 927
Madison, WI 53701-0927
(608) 257-9521
PROFIT SHARING PLAN AND TRUST
FOR NON-UNION EMPLOYEES
Table of Contents
CHAPTER 1 History, Restatement and Continuation of Prior Plan . . . 1
Section 1.1-Plan and Trust History . . . . . . . . . . . 1
Section 1.2-Restatement . . . . . . . . . . . . . . . . . 1
CHAPTER 2 Definitions and Construction . . . . . . . . . . . . . . 2
Section 2.1-Definitions . . . . . . . . . . . . . . . . . 2
Section 2.2-Construction . . . . . . . . . . . . . . . . 7
CHAPTER 3 Participation and Service . . . . . . . . . . . . . . . . 8
Section 3.1-Participation . . . . . . . . . . . . . . . . 8
Section 3.2-Years of Service and Hours of
Employment . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.3-Inactive Status . . . . . . . . . . . . . . . 11
Section 3.4-Participation and Service Upon
Reemployment . . . . . . . . . . . . . . . . . . . . . 11
CHAPTER 4 Contributions and Forfeitures . . . . . . . . . . . . . . 12
Section 4.1-Employer Contributions . . . . . . . . . . . 12
Section 4.2-401(k) Contributions . . . . . . . . . . . . 12
Section 4.3-Distribution of Excess Deferrals and
Contributions . . . . . . . . . . . . . . . . . . 13
Section 4.4-Disposition of Forfeitures . . . . . . . . . 13
Section 4.5-Rollover Accounts . . . . . . . . . . . . . . 14
CHAPTER 5 Allocations to Participants' Accounts . . . . . . . . . . 15
Section 5.1-Individual Accounts . . . . . . . . . . . . . 15
Section 5.2-Account Adjustments . . . . . . . . . . . . . 15
Section 5.3-Maximum Additions . . . . . . . . . . . . . . 16
CHAPTER 6 Benefits . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.1-Retirement or Disability . . . . . . . . . . 17
Section 6.2-Death . . . . . . . . . . . . . . . . . . . . 17
Section 6.3-Vesting and Termination of Employment . . . . 17
Section 6.4-Payment of Benefits . . . . . . . . . . . . . 18
Section 6.5-Hardship and In-Service Distributions . . . . 22
Section 6.6-Designation of Beneficiary . . . . . . . . . 23
CHAPTER 7 Trust Fund . . . . . . . . . . . . . . . . . . . . . . . 23
CHAPTER 8 Administration of Plan . . . . . . . . . . . . . . . . . 24
Section 8.1-Allocation of Responsibility Among
Fiduciaries for
Plan and Trust Administration . . . . . . . . . . 24
Section 8.2-Appointment of Committee . . . . . . . . . . 25
Section 8.3-Claims Procedure . . . . . . . . . . . . . . 25
Section 8.4-Records and Reports . . . . . . . . . . . . . 25
Section 8.5-Other Committee Powers and Duties . . . . . . 25
Section 8.6-Rules and Decisions . . . . . . . . . . . . . 26
Section 8.7-Committee Procedures . . . . . . . . . . . . 26
Section 8.8-Application and Forms for Benefits . . . . . 27
Section 8.9-Facility of Payment . . . . . . . . . . . . . 27
Section 8.10-Evidence of Employer's Actions . . . . . . . 27
Section 8.11-Evidence of Committee's Actions . . . . . . 27
Section 8.12-Evidence in Writing . . . . . . . . . . . . 27
CHAPTER 9 Administration of Trust . . . . . . . . . . . . . . . . . 27
Section 9.1-Trustee's Powers . . . . . . . . . . . . . . 27
Section 9.2-Expenses of Plan and Trustee . . . . . . . . 29
Section 9.3-Liability of Trustee . . . . . . . . . . . . 29
Section 9.4-Records and Accounting . . . . . . . . . . . 29
Section 9.5-Removal of Trustee . . . . . . . . . . . . . 29
Section 9.6-Investment Manager . . . . . . . . . . . . . 30
Section 9.7-Investment Instructions . . . . . . . . . . . 30
CHAPTER 10 Amendments and Action by Employer . . . . . . . . . . . . 31
Section 10.1-Amendments . . . . . . . . . . . . . . . . . 31
Section 10.2-Amendments to Vesting Schedule . . . . . . . 31
Section 10.3-Action by Employer . . . . . . . . . . . . . 31
CHAPTER 11 Successor Employer and Merger or Consolidation of
Plans . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 11.1-Successor Employer . . . . . . . . . . . . . 31
Section 11.2-Plan Assets . . . . . . . . . . . . . . . . 32
CHAPTER 12 Plan Termination . . . . . . . . . . . . . . . . . . . . 32
Section 12.1-Right to Terminate . . . . . . . . . . . . . 32
Section 12.2-Partial Termination . . . . . . . . . . . . 32
Section 12.3-Liquidation of the Trust Fund . . . . . . . 32
Section 12.4-Manner of Distribution . . . . . . . . . . . 33
CHAPTER 13 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 33
Section 13.1-Nonguarantee of Employment . . . . . . . . . 33
Section 13.2-Rights to Trust Assets . . . . . . . . . . . 33
Section 13.3-Nonalienation of Benefits . . . . . . . . . 33
Section 13.4-Discontinuance of Employer Contribu-
tions . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 13.5-Service of Process . . . . . . . . . . . . . 33
Section 13.6-Missing Payee . . . . . . . . . . . . . . . 34
Section 13.7-Applicable Law . . . . . . . . . . . . . . . 34
Section 13.8-Qualified Status of Trust . . . . . . . . . 34
Section 13.9-Top Heavy Rules . . . . . . . . . . . . . . 34
Section 13.10-Additions . . . . . . . . . . . . . . . . . 37
Section 13.11-Highly Compensated Employees . . . . . . . 37
Section 13.12-Disability Plan . . . . . . . . . . . . . . 37
CHAPTER 1
History, Restatement and Continuation of Prior Plan
Section 1.1-Plan and Trust History: Badger Paper Mills, Inc.
("Principal Employer"), a Wisconsin corporation, established a pension
plan for salaried employees on December 15, 1943, funded by individual
policy contracts. This plan was changed on December 1, 1955 to a self-
administered trusteed pension plan, consisting of a plan and a trust. The
plan and trust were amended and restated on December 15, 1964 as a profit
sharing plan and trust and have been continued in that form to the present
time. Effective January 1, 1976 the plan was amended and completely
restated for the purpose of complying with the provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA"). Additional amendments
were made in 1978 to comply with ERISA.
Amendments were made effective January 1, 1984 to comply with the Tax
Equity and Fiscal Responsibility Act of 1982 ("TEFRA"). Amendments also
were made effective January 1, 1985 to meet the requirements of the Tax
Reform Act of 1984 ("TRA '84") and the Retirement Equity Act of 1984
("REA"). Effective January 1, 1985, a qualified cash or deferred
arrangement under Code Section 401(k) was added to the Plan. Generally
effective January 1, 1989, unless some other date was required by law, the
plan was amended and restated to meet the requirements of the Tax Reform
Act of 1986 ("TRA '86"). Subsequent to the TRA '86 restatement, the plan
was amended several times.
The terms of the plan's trust historically were embodied in a
separate trust document, most recently entitled the "Badger Paper Mills,
Inc. Profit Sharing Trust for Non-Union Employees." Effective July 1,
1994, Valley Trust Company was removed as trustee and replaced by Norwest
Bank Minnesota, N.A. Pursuant to the terms of the document herein, and
effective July 1, 1994, the terms of the plan and trust are consolidated
into one plan document trusteed by Norwest Bank Minnesota, N.A.
Section 1.2-Restatement: Effective July 1, 1994 ("Effective Date"),
unless an earlier effective date is set forth herein with respect to one
or more provisions, the plan and trust is amended and restated into the
following document, to be known as the Badger Paper Mills, Inc. Profit
Sharing Plan and Trust for Non-Union Employees ("Plan" or "Non-Union
Plan").
This Plan, which includes the trust forming part of the Plan, consti-
tutes an amendment, restatement and continuation, without a termination or
discontinuance, of the prior plan and trust.
The Plan applies to Employees who, on or after the Effective Date,
are in the employ of the Employer. The rights and benefits of an Employee
whose final period of employment terminated prior to the Effective Date
shall be determined in accordance with the provisions of the applicable
prior plan and trust as in effect at the time of such termination of
employment unless an earlier effective date is required for any provision.
The Plan is intended to meet the requirements of Section Section
401(a), 401(k) and 501(a) of the Internal Revenue Code and ERISA, each as
amended from time to time, and any other applicable federal legislation.
CHAPTER 2
Definitions and Construction
Section 2.1-Definitions: The following words and phrases, when used
herein, unless their context clearly indicates otherwise, shall have the
following respective meanings:
(a) Account: The record maintained to record each Participant's
interest in the Plan.
(b) Accounting Dates: The Valuation Dates, as defined herein.
(c) Additions: With respect to each Limitation Year, the total of
Employer contributions, Employee contributions, and Forfeitures
allocated to a Participant's accounts. Also see Section 13.10.
(d) Affiliate: Each subsidiary of the Principal Employer and other
corporation, trade or business under common control as defined in
ERISA. Any Affiliate that has been approved by the Principal
Employer to participate in the Plan may adopt and become a party to
the Plan by filing with the Trustee a copy of a resolution of its
Board of Directors or other governing body evidencing its election to
participate.
(e) Authorized Leave of Absence: Any absence authorized by the
Employer under the Employer's standard personnel practices provided
that all persons under similar circumstances must be treated alike in
the granting of such Authorized Leaves of Absence and provided
further that the Participant returns within the period of authorized
absence. An absence due to service in the Armed Forces of the United
States shall be considered an Authorized Leave of Absence provided
that the absence is caused by war or other emergency, or provided
that the Employee is required to serve under the laws of conscription
in time of peace, and further provided that the Employee returns to
employment with the Employer within the period provided by law.
(f) Beneficiary: A person or persons (natural or otherwise)
designated by a Participant to receive any death benefit which shall
be payable under this Plan.
(g) Break in Service: A Plan Year during which a Participant or
Former Participant completes 500 or less hours of employment for the
Employer.
(h) Code: The Internal Revenue Code of 1986, as amended from time
to time.
(i) Committee: The persons designated pursuant to Chapter 8 to
administer the Plan, also known as the Profit Sharing Trust Committee
for Non-Union Employees.
(j) Compensation: Effective January 1, 1993, the total of all
amounts paid during the Plan Year by an Employer to a Participant for
services as an Employee, plus any bonus earned during the Plan Year
in which a Participant dies or retires though paid the following Plan
Year, but exclusive of severance or termination pay, reimbursement
for moving expenses, awards for inventions, premiums for life,
accident health and hospitalization insurance, dividends on
restricted shares of stock of the Employer, contributions or accruals
under Employee deferred compensation, social security, unemployment
and other employee benefit plans, compensation realized under
Employee stock option and stock purchase agreements, and all other
non-cash items paid or delivered to the Employee, but including
Employer elective contributions under a qualified cash or deferred
plan as defined by Code Section 401(k) and also including
compensation which is paid in shares of stock of the Company pursuant
to any bonuses determined by the Board.
For the purpose of allocating the Employer contribution for the
Plan Year in which a Participant begins or resumes participation,
Compensation paid before his or her participation began or resumed
shall be disregarded.
Effective January 1, 1994, the annual Compensation of each
Participant taken into account under the Plan for any Plan Year shall
not exceed $150,000, as adjusted by the Secretary of the Treasury.
In determining the Compensation of a Participant for purposes of the
dollar limitation, the rules of Code Section 414(q)(6) shall apply,
except in applying such rules, the term "family" shall include only
the spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the
year. If, as a result of the application of such rules the adjusted
dollar limitation is exceeded, then the limitation shall be prorated
among the affected individuals in proportion to each such
individual's Compensation as determined under this Section prior to
the application of this limitation.
(k) Disability: A physical or mental condition which, in the
judgment of the Committee, based upon medical reports and other
evidence satisfactory to the Committee, permanently prevents the
Participant from satisfactorily performing his usual duties or the
duties of any other work available with the Employer for which he is
qualified by reason of training, education or experience.
(l) Effective Date: July 1, 1994, unless an earlier date is
otherwise provided herein or required by law.
(m) Eligibility Date: The date on which an Employee becomes a
Participant in the Plan. For purposes of Section 4.1, the
Eligibility Dates shall be January 1st and July 1st of each Plan
Year. For purposes of Section 4.2, the Eligibility Dates shall be
the first day of each month.
(n) Employee: Any person who, on or after the Effective Date, is
receiving remuneration for personal services rendered to the Employer
(or who would be receiving such remuneration except for an Authorized
Leave of Absence). The term "Employee" also shall include any Leased
Employee treated as an employee of the Employer; however,
notwithstanding the foregoing, no Leased Employee shall be eligible
to participate in the Plan.
(o) Employer: The Principal Employer, Badger Paper Mills, Inc., a
corporation organized and existing under the laws of the State of
Wisconsin, or its successor or successors, and any other Affiliate
which adopts the Plan in accordance with Section 2.1(d). Effective
November 1, 1992, the Affiliate Plas-Techs, Inc. adopted the Plan for
the benefit of its employees pursuant to the preceding sentence.
(p) Employer Contribution Account: The account maintained for a
Participant to record his or her share of the contributions of the
Employer under Section 4.1 and adjustments relating thereto.
(q) ERISA: Public Law No. 93-406, the Employee Retirement Income
Security Act of 1974, as amended from time to time.
(r) 401(k) Contribution Account: The account maintained for a
Participant to record his or her 401(k) Contributions pursuant to
Section 4.2 and adjustments relating thereto.
(s) Fiduciaries: The Employer, the Committee, the Trustee, and the
Investment Manager, if any, but only with respect to the specific
responsibilities of each for Plan and Trust administration, all as
described in Section 8.1.
(t) Forfeitures: The portion of a Participant's Employer Contri-
bution Account which is allocated to other Participants because of
termination of employment before full vesting.
(u) Former Participant: A Participant whose employment with the
Employer has terminated but who has a vested Account balance under
the Plan which has not been paid in full.
(v) Highly Compensated Employee: The term "Highly Compensated
Employee" includes highly compensated active employees and highly
compensated former employees (the latter category of which is defined
in Section 13.11).
A highly compensated active employee includes any Employee who
performs service for the Employer during the determination year and
who, during the look-back year: (i) received compensation from the
Employer in excess of $99,000 (for 1994 and adjusted pursuant to Code
Section 415(d)); (ii) received compensation from the employer in
excess of $66,000 (for 1994 and adjusted pursuant to Code Section
415(d)) and was a member of the top-paid group for such year; or
(iii) was an officer of the Employer and received compensation during
such year that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A), such amount equal to $59,400
for 1994. The term Highly Compensated Employee also includes: (i)
Employees who are 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 the Employer during the determination year;
and (ii) Employees who are 5 percent owners at any time during the
look-back year or determination year. For purposes of this Section,
the determination year shall be the Plan Year for which the highly
compensated employee determinations are being made and the look-back
year shall also be such same Plan Year (and not the 12-month period
preceding the determination year).
If no officer has satisfied the compensation requirement of
(iii) above during either a determination year or look-back year, the
highest paid officer for such year shall be treated as a Highly
Compensated Employee.
If an Employee is, during a determination year or look-back
year, a family member of either a 5 percent owner who is an active or
former Employee or a Highly Compensated Employee who is one of the 10
most Highly Compensated Employees ranked on the basis of compensation
paid by the Employer during such year, then the family member and the
5 percent owner or top-ten highly compensated employee shall be
aggregated. In such case, the family member and 5 percent owner or
top-ten Highly Compensated Employee shall be treated as a single
Employee receiving compensation and Plan contributions or benefits
equal to the sum of such Compensation and contributions or benefits
of the family member and 5 percent owner or top-ten Highly
Compensated Employee. For purposes of this Section, family member
includes the spouse, lineal ascendants and descendants of the
Employee or former Employee and the spouses of such lineal ascendants
and descendants.
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 Code Section 414(q), the regulations
thereunder and also Section 13.11.
(w) Hour of Employment: Defined in Section 3.2.
(x) Income: The net gain or loss of the Trust Fund from invest-
ments, as reflected by interest payments, dividends, realized and
unrealized gains and losses on securities, other investment trans-
actions and expenses paid from the Trust Fund.
(y) Leased Employee: Any person (other than an employee of the
Employer) who pursuant to an agreement between the Employer and the
"leasing organization" has performed services for the Employer on a
substantially full-time basis for a period of at least one year, and
such services are of a type historically performed by employees in
the business field of the Employer. Contributions or benefits
provided a Leased Employee by the leasing organization which are
attributable to services performed for the Employer shall be treated
as provided by the Employer.
A Leased Employee shall not be treated as an employee of the
Employer if: (i) such employee is covered by a money purchase
pension plan providing: (1) a nonintegrated employer contribution
rate of a least 10 percent of compensation, as defined in Code
Section 415(c)(3), but including amounts contributed pursuant to a
salary reduction agreement which are excludable from the employee's
gross income under Code Section Section 125, 402(a)(8), 402(h), or
403(b), (2) immediate participation, and (3) full and immediate
vesting; and (ii) leased employees do not constitute more than 20
percent of the Employer's nonhighly compensated workforce.
(z) Limitation Year: The Plan Year or another 12-month period
selected by the Employer's Board of Directors as evidenced by a
validly adopted resolution thereof.
(aa) Named Fiduciary: The Committee.
(bb) Normal Retirement Age: The first day of the Plan Year in
which the Participant attains age 65.
(cc) Participant: An Employee participating in the Plan in
accordance with Section 3.1.
(dd) Participation: The period commencing as of the date that
an Employee becomes a Participant and ending on the date that employ-
ment with the Employer terminates.
(ee) Plan (or Non-Union Plan): Badger Paper Mills, Inc. Profit
Sharing Plan and Trust for Non-Union Employees, set forth herein, as
amended from time to time.
(ff) Plan Year: The 12-month period commencing on the first day
of January and ending on the last day of the following December.
(gg) Principal Employer: Badger Paper Mills, Inc., or its
successor or successors.
(hh) Qualified Domestic Relations Order: A valid judgment,
decree or order (including approval of a property settlement
agreement) which relates to the provision of child support, alimony
payments or marital property rights to a spouse, former spouse, child
or other dependent of a Participant made pursuant to the domestic
relations law of any state and which meets all of the other require-
ments for qualification set forth, from time to time, in subsection
1056(d) of Title 29 of the United States Code. The Plan shall permit
commencement of the payment of benefits to any such alternate payee,
pursuant to an otherwise valid Qualified Domestic Relations Order,
even though commencement occurs prior to the attainment of the
Participant's earliest retirement age, as that term is defined in the
Code and ERISA.
(ii) TEFRA: Public Law No. 97-248, the Tax Equity and Fiscal
Responsibility Act of 1982.
(jj) Termination of Employment: The date the individual ceases
to be an Employee of the Employer. Termination of employment may
have resulted from retirement, death or voluntary or involuntary
termination of employment, unauthorized absence, or by failure to
return to active employment with the Employer by the date on which an
Authorized Leave of Absence expired.
(kk) Trust (or Trust Fund): The fund known as the Badger Paper
Mills, Inc. Profit Sharing Trust for Non-Union Employees, maintained
in accordance with the terms of this agreement, as from time to time
amended, which constitutes a part of this Plan.
(ll) Trustee: The corporation or individuals appointed by the
Principal Employer to administer the Trust.
(mm) Valuation Date: The date for determining the fair market
value of the assets of the Trust Fund. Effective July 1, 1993, the
Valuation Dates shall be the last day of each March, June, September
and December of each Plan Year. Effective October 1, 1994, the
Valuation Dates shall be the last day of each month. Effective as of
a future date designated by the Principal Employer and Trustee in
writing, the Valuation Dates may be increased or decreased in
frequency, but in every event shall be at least one day each Plan
Year.
(nn) Year of Service: Defined in Section 3.2.
Section 2.2-Construction: The words "hereof," "herein," "hereunder"
and other similar compounds of the word "here" shall mean and refer to the
entire Plan and not to any particular provision or Section. Wherever
appropriate, words or terms used in this Plan in the singular may mean the
plural, the plural may mean the singular, and the masculine may mean the
feminine or neuter. Reference to the provisions of any particular section
of the Code, ERISA, other statute (or regulation thereunder), Revenue
Ruling or other release of the United States Treasury Department
(collectively referred to as "authority") shall be deemed to be reference
to any section of the authority which may hereafter contain the same or
similar provisions. The headings of Chapters and Sections hereunder are
included solely for convenience of reference, and if there is any conflict
between such headings and the text of this Plan, the text shall control.
CHAPTER 3
Participation and Service
Section 3.1-Participation: Each Employee of an Employer who (1) is
not included in a unit of employees covered by a collective bargaining
agreement between Employee representatives and the Employer in which
retirement benefits were in good faith negotiated, and (2) has attained at
least 21 years of age, shall become a Participant in the Plan in
accordance with the following:
(a) For purposes of being eligible to receive an allocation of the
Employer contributions and Forfeitures under Section 4.1, he or she
shall become a Participant on the Eligibility Date next following his
completion of one Year of Service; and
(b) For purposes of being eligible to make 401(k) Contributions
under Section 4.2, he or she shall become a Participant on the
Eligibility Date next following ninety (90) days of continuous
employment with the Employer as a permanent full-time Employee;
notwithstanding the foregoing, for purposes of this subsection
3.1(b), in all events each Employee shall become a Participant on the
Eligibility Date applicable to subsection 3.1(a) above (either
January 1st or July 1st) next following his completion of one Year of
Service. In addition, in order for a Participant to commence 401(k)
Contributions under Section 4.2 on the Participant's Eligibility
Date, the Participant must file the appropriate written election with
the Committee or Trustee prior to the 15th day of the month preceding
the Eligibility Date or by such other date announced to Participants.
An Employee who meets the conditions of this Section 3.1, and thus
otherwise would become a Participant, except for clause (1) above, shall
become a Participant immediately upon satisfying such clause (1). A
Participant shall not cease to be a Participant solely because he or she
ceases to satisfy clause (1), but such Participant shall become ineligible
to receive allocations of contributions and Forfeitures thereafter. To
implement the foregoing, the Committee shall establish uniformly applied
procedures to administer this Plan to coordinate the Participant's change
in status from union to non-union or non-union to union, which procedure
may include the direct trustee-to-trustee transfer of the Participant's
benefits from this Plan to another profit sharing plan maintained by the
Employer.
Notwithstanding the foregoing, any Participant under another defined
contribution plan maintained by an Employer shall also become a
Participant under this Plan on the actual (not eligibility) date on which
he meets all of the requirements of this Section.
Section 3.2-Years of Service and Hours of Employment: A "Year of
Service" for Plan participation purposes shall mean 12 consecutive months
during an Eligibility Computation Period in which the Employee has
completed at least 1,000 hours of employment. The initial Eligibility
Computation Period shall commence with the date the Employee first
performed an hour of employment with the Employer, whether commencing
before or after the Effective Date, and shall end on the day immediately
preceding the anniversary date thereof, and thereafter the Eligibility
Computation Period shall be each 12 consecutive month period ending on the
day immediately preceding an Eligibility Date.
For purposes of vesting, subject to the reemployment provisions of
Section 3.4, a Year of Service shall mean each Plan Year in which the
Participant has 1,000 or more hours of employment. In addition, if the
period for determining a Participant's Year of Service for eligibility
purposes, during which he or she has at least 1,000 hours of employment,
overlaps two Plan Years during neither of which he or she has at least
1,000 hours of employment, his or her Year of Service completed for
eligibility purposes shall also be counted as a Year of Service for
vesting purposes.
In determining eligibility to participate, vesting and Breaks in
Service, an Employee or Participant shall receive credit for one hour of
employment for:
(a) Each hour for which he or she is paid, or entitled to payment,
for the performance of duties for the Employer.
(b) Each hour for which he or she is paid, or entitled to payment,
by the Employer on account of a period of time during which no duties
are performed (even though the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence.
Notwithstanding the preceding:
(1) No more than 501 hours of employment are required to be
credited under this subsection (b) to anyone on account of any
single continuous period during which he or she performs no
duties;
(2) An hour for which an Employee is directly or indirectly
paid, or entitled to payment, on account of a period during
which no duties are performed is not required to be credited if
such payment is made or due under a plan maintained solely for
the purpose of complying with applicable worker's compensation,
unemployment compensation or disability insurance laws; and
(3) Hours of employment are not required to be credited for a
payment which solely reimburses a person for medical or
medically related expenses incurred by that person.
For purposes of this subsection (b), a payment shall be deemed
to be made by or due from Employer regardless of whether such payment
is made by or due from the Employer directly, or indirectly through,
among others, a trust, fund, or insurer, to which the Employer
contributes or pays premiums and regardless of whether contributions
made or due to the trust fund, insurer or other entity are for the
benefit of particular Employees or are on behalf of a group of
Employees in the aggregate.
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same
hours of employment shall not be credited both under subsection (a)
or subsection (b), as the case may be, and under this subsection.
Crediting of hours of employment for back pay awarded or agreed to
with respect to periods described in subsection (b) shall be subject
to the limitations set forth in that paragraph.
Hours of employment will be credited for employment with other
members of an affiliated service group (under Code Section 414(m)), a
controlled group of corporations (under Code Section 414(b)), or a group
of trades or businesses under common control (under Code Section 414(c))
of which the Principal Employer is a member, and any other entity required
to be aggregated with the Principal Employer pursuant to Code Section
414(o) and the regulations thereunder. Hours of employment will also be
credited for any individual considered an employee for purposes of this
Plan under Code Section 414(n). With respect to Employees employed at any
time at the Oconto Falls, Wisconsin location of the Affiliate Employer
Plas-Techs, Inc., hours of employment which such Employees had with any
Employer (including Plas-Techs, Inc.) prior to Plas-Techs, Inc. becoming
an Affiliate of the Company shall not be treated as service with the
Employer. Effective January 1, 1993, for all purposes of the Plan,
including without limitation, eligibility to participate, allocation of
contributions and forfeitures, and vesting, Years of Service and hours of
employment shall include any prior service the Employee had with another
employer in the pulp and paper industry; provided, however, this provision
shall only apply if, in the hypothetical, the eligibility provisions of
this Plan were applied to the Employee while the Employee was employed by
such other prior employer and if, under such provisions, the Employee
hypothetically would have become a Participant in this Plan while employed
by such other employer.
Hours shall be counted and credit given when the duties are performed
or as of the time to which the back pay applies and not when the payment,
award or agreement is made. Determination and crediting of hours of
employment shall be done in accordance with Department of Labor
Regulations Section Section 2530.200b-2(b) and (c).
For absences, with or without pay, for one of the following reasons:
(a) pregnancy of the Employee,
(b) birth of a child of the Employee,
(c) placement of a child with the Employee in connection with the
adoption of such child by the Employee, or
(d) caring for a child of the Employee for a period beginning
immediately following a birth or placement of an adopted child of the
Employee,
an Employee shall be given credit, for determining whether a Break in
Service occurred for eligibility and vesting purposes only, for the same
number of hours of employment, up to 501, the Employee would have been
expected to receive if there had been no such absence. If the expected
number of hours of credit cannot be determined, the Employee shall receive
credit for eight (8) hours of employment for each working day of absence.
The credit shall be given in the Plan Year in which the absence began if
the credit is necessary for the Employee to avoid a Break in Service; in
all other cases, it shall be given in the Plan Year first succeeding the
one in which the absence began. If requested, an Employee, in order to
receive credit, must furnish proof satisfactory to the Committee that the
absence occurred for one of the reasons specified above and the number of
days for which such reason was the cause of the absence.
Section 3.3-Inactive Status: In the event that any Participant shall
fail, in any Plan Year of his or her employment after the Effective Date,
to accumulate 1,000 hours of employment, his or her Employer Contribution
Account shall be placed on inactive status. In such case, such Plan Year
shall not be considered as a period of service for the purposes of
determining the Participant's vested interest in accordance with Section
6.3, but the Participant shall continue to receive Income allocations in
accordance with Section 5.2(a).
Section 3.4-Participation and Service Upon Reemployment: Active
participation in the Plan shall cease upon termination of employment with
the Employer.
Upon the reemployment of any person after the Effective Date who had
previously been employed by the Employer on or after the Effective Date,
the following rules shall apply in determining his or her participation in
the Plan and his service under Section 3.2:
(a) Participation: If the reemployed Employee was not a Participant
in the Plan during the prior period of employment, the Employee must
meet the requirements of Section 3.1 for participation in the Plan as
if he or she were a new Employee.
Subject to subsection (b) below, if the reemployed Employee was
a Participant in the Plan during the prior period of employment, the
Employee shall participate in the Plan as of the first day of his or
her reemployment.
(b) Service: If a Participant incurs 5 or more consecutive Breaks
in Service, his Years of Service for vesting purposes completed after
such Breaks in Service shall be disregarded for purposes of
determining his nonforfeitable right in the balance of his Accounts
determined as of the date such Breaks in Service began. If a
Participant incurs less than 5 consecutive Breaks in Service, then
his service prior to such Breaks in Service shall only be disregarded
if he/she receives a cash-out distribution and his prior forfeited
benefit is not restored pursuant to Section 4.4.
CHAPTER 4
Contributions and Forfeitures
Section 4.1-Employer Contributions: Subject to the Employer's right
to cease contributions, each Employer shall contribute to the Trust each
Plan Year an amount equal to the sum of 4% of that Plan Year's
Compensation of Active Participants plus 4% of each Active Participant's
Excess Compensation. "Excess Compensation" means a Participant's
Compensation for the Plan Year in excess of the Social Security taxable
wage base in effect at the beginning of the Plan Year.
In addition to the foregoing contribution each Plan Year, each
Employer may contribute to the Trust on account of such Year any
additional sum which the Employer's Board of Directors in its discretion
determines.
The total contribution by the Employer for any Plan Year, including
discretionary Employer contributions and 401(k) Contributions, shall not
exceed 15% of the total Compensation of all Participants for that year, as
determined under Code Section 404, plus or minus such amounts as given
full recognition to the carry-over provisions (for less than or greater
than 15% contributions in earlier years) of Code Section 404. All
contributions by the Employer pursuant to this Section shall be paid to
the Trustee and payment shall be made not later than the date prescribed
by law for filing the Employer's federal income tax returns, including
extensions which have been granted for the filing of such tax return.
Section 4.2-401(k) Contributions: Participants are not required to
make any contributions under this Plan. However, a Participant may elect
to have his or her Compensation reduced by the percentage he or she
designates. No Participant, however, shall be allowed to reduce his or
her Compensation in any calendar year by an amount which exceeds the
amount permitted under Code Section 402(g)(5). For 1994, such amount is
Nine Thousand Two Hundred Forty Dollars ($9,240.00). The amount of these
401(k) Contributions shall be any whole number percentage of Compensation
and shall be credited to the Participant's 401(k) Contribution Account.
The Election Dates for the making of 401(k) Contributions shall be on
each January 1, April 1, July 1 and October 1. Each election shall be
effective on the first day of the first pay period which begins on or
after the Election Date. All elections shall be made in such manner as
determined by the Committee and shall be effective until changed for a
succeeding election period by submission of a new election prior to the
15th day of the month preceding an Election Date (or at such other time
announced to Participants). Each Participant, however, shall have the
right to revoke entirely his or her election on an Election Date and such
change shall be implemented for the first feasible succeeding pay period
after receipt by the Employer of such request. Such revocation shall be
effective until a new election is made on any succeeding Election Date.
The 401(k) Contributions shall be transmitted to the Trustee of the
Trust Fund by the Employer as soon as feasible after the date on which
each compensation check was reduced.
Notwithstanding the foregoing, the Employer may at any time during
the Plan Year make an estimate of the amount of the 401(k) Contributions
made on behalf of Participants who are Highly Compensated Employees that
will be permitted under the nondiscrimination test of Code Section 401(k)
and may reduce the percentage specified for such Participants to the
extent the Employer determines in its sole discretion to be necessary to
satisfy the nondiscrimination rules applicable to such contributions. The
Employer may also provide one or more additional Election Dates to make
401(k) Contributions for Highly Compensated Employees whose 401(k)
Contributions were limited during the Plan Year pursuant to the preceding
sentence.
Section 4.3-Distribution of Excess Deferrals and Contributions:
Notwithstanding any other provision in this Plan, Excess Deferral Amounts,
and Income thereon, shall be distributed no later than April 15 to
Participants who claim such Excess Deferral Amounts for the preceding
calendar year. Excess Deferral Amount shall mean the amount of 401(k)
Contributions for a calendar year that a Participant allocates to this
Plan pursuant to the claim procedure set forth below.
A Participant's claim shall be in writing, shall be submitted to the
Committee no later than March 1 of the following calendar year, shall
specify the Participant's Excess Deferral Amount and shall be accompanied
by the Participant's written statement that if such amounts are not
distributed, such Excess Deferral Amount, when added to amounts deferred
under other plans or arrangements described in Section Section 401(k),
408(k) or 403(b) of the Code, exceeds the limit imposed on the Participant
by Section 402(g) of the Code for the prior calendar year. A Participant
who has Excess Deferral Amounts with reference only to this Plan shall be
deemed to have made a claim for a distribution pursuant to this Section
4.3, in the Committee's discretion. The Excess Deferral Amount
distributed to a Participant with respect to a calendar year shall be
adjusted for Income, but in no event shall the distribution be less than
the lesser of the Participant's 401(k) Contribution Account, as of the
most recent Valuation Date, or the Participant's 401(k) Contributions for
the calendar year.
If the Plan fails the nondiscrimination test in Section 401(k) of the
Code for any Plan Year, 401(k) Contributions, and Income thereon, shall be
returned no later than the end of the following Plan Year to Highly
Compensated Employees to the extent necessary to satisfy the test. The
return of such amounts shall be made to Highly Compensated Employees in
the order that their 401(k) Contributions are a percentage of Compensation
for the Plan Year, beginning with the highest percentage and treating each
Highly Compensated Employee with the same percentage equally. All
determinations under Section 401(k) of the Code shall, in the case of any
Highly Compensated Employee, be made using the family aggregation rules
set forth in Code Section 414(q) and the regulations thereunder.
Section 4.4-Disposition of Forfeitures: Upon termination of employ-
ment, the Accounts of any Participant shall continue to be invested and
maintained. If the Former Participant does not return as an Employee, any
Forfeiture shall occur as of the date on which the Former Participant
receives a distribution of the entire vested portion of all of his or her
Accounts or, if earlier, on the last day of the Plan Year in which the
Former Participant incurs five consecutive Breaks in Service. The vested
portion of the Former Participant's Accounts shall be distributed in
accordance with Section 6.4, and the Forfeitures shall be allocated
pursuant to Section 5.2(b).
If a Former Participant returns to the employ of the Employer before
incurring five consecutive Breaks in Service and repays the entire amount
previously distributed to him or her, the forfeitable amount shall be
reinstated to the Participant by a special allocation out of Forfeitures,
Income or the Employer Contribution. The Participant's repayment must be
made prior to the earlier of the date which is (a) five years from the
date of reemployment, or (b) the completion of five consecutive Breaks in
Service. The special allocation, if any, shall be made for the Plan Year
in which repayment is made and the amount repaid, plus the forfeitable
amount, shall be added to the Participant's Employer Contribution Account.
If a Participant is deemed to receive a distribution pursuant to
Section 6.4 because the value of his or her vested Account balance is
zero, the Forfeiture shall occur on the date of his or her termination of
employment and be allocated as of the immediately following December 31.
If such Participant resumes employment with the Employer prior to
incurring five consecutive Breaks in Service, upon reemployment the
Participant's Account balance shall be restored to the amount on the date
of such deemed distribution. The special allocation to restore the
Account shall be made pursuant to the preceding paragraph.
If the Former Participant returns to the employ of the Employer after
incurring five consecutive Breaks in Service, but prior to complete
distribution of his or her vested Employer Contribution Account, no
further distributions shall be made and the undistributed portion shall be
maintained in a special employer contribution account.
Section 4.5-Rollover Accounts: With the consent of the Employer, an
Employee may transfer to the Trust Fund an amount that constitutes a
Rollover Contribution. The Employer shall grant such consent only if it
is certain that the amount to be transferred will constitute a proper
Rollover Contribution. Notwithstanding any provisions of the Plan to the
contrary, the following shall apply with respect to a Rollover
Contribution:
(a) A Rollover Account shall be established for each Employee who
makes a Rollover Contribution.
(b) A Rollover Account shall be treated the same herein as an
Employer Contribution Account and any references in the Plan to an
Employer Contribution Account shall apply equally to a Rollover
Account, except that no contributions or Forfeitures shall be added
to a Rollover Account, and in the event of the Employee's termination
of employment his or her vested percentage in the Rollover Account
shall be 100%.
(c) An Employee making a Rollover Contribution shall be treated the
same as a Participant from the time of the transfer, but he or she
shall not be a Participant until he or she has satisfied the
requirements of Chapter 3.
(d) Effective January 1, 1993, the Employer shall refuse to accept a
Rollover Contribution if it determines that its acceptance will cause
the Plan to be a direct or indirect transferee (within the meaning of
Code Section 401(a)(11)(B)(iii)(III)) from any qualified retirement
plan which is subject to the requirements of Code Section Section
401(a)(11) and 417.
(e) Also effective January 1, 1993, the term "Rollover Contribution"
means a contribution of an amount which may be rolled over to this
Plan pursuant to Code Section Section 402(c), 408(d)(3) or any other
provision which may permit rollovers to this Plan. The term
"Rollover Contribution" also includes an amount which is an "eligible
rollover distribution" which may be directly transferred to this Plan
pursuant to Code Section 401(a)(31) or any other Code provision which
permits direct rollovers.
CHAPTER 5
Allocations to Participants' Accounts
Section 5.1-Individual Accounts: The Committee shall create and
maintain adequate records to disclose the interest in the Trust of each
Participant, Former Participant and Beneficiary. Such records shall be in
the form of individual accounts, and credits and charges shall be made to
such accounts in the manner herein described. A Participant shall have an
Employer Contribution Account and, if appropriate, such other necessary
Accounts as defined in Section 2.1 or described elsewhere in this Plan.
The maintenance of individual accounts is only for accounting purposes,
and a segregation of the assets of the Trust Fund to each account shall
not be required. Distribution and withdrawals made from an Account shall
be charged to the Account as of the date paid.
Section 5.2-Account Adjustments: The accounts of Participants,
Former Participants and Beneficiaries shall be adjusted in accordance with
the following:
(a) Income: The Income of each type of investment or investment
fund of the Trust Fund for the period ending on a Valuation Date
shall be allocated to the Accounts of Participants, Former
Participants and Beneficiaries who had unpaid balances in their
Accounts on the Valuation Date in proportion to the balances of such
Accounts. For the purpose of allocating Income on a Valuation Date,
Accounts shall be valued as of the preceding Valuation Date but shall
be increased or decreased, as the case may be, pursuant to uniformly
applied procedures which recognize credits (such as contributions) or
debits (such as distributions) to such Accounts that occur between
such Valuation Dates. All valuations shall be based upon the fair
market value of assets in the Trust Fund.
(b) Employer Contributions and Forfeitures: As of the end of each
Plan Year, the Employer's contribution pursuant to Section 4.1, and
any Forfeitures, for the Plan Year shall be allocated among Active
Participants, which term is defined as (1) those Participants who
accumulate at least 1,000 hours of employment during the Plan Year
and (2) those Participants who were in the employ of the Employer on
the first day of the Plan Year whose employment terminated because of
death or Disability or after attaining Normal Retirement Age during
such Plan Year.
Subject to Section 13.9(b), the Employer's contribution and any
Forfeitures shall be credited each Plan Year to each such Partici-
pant's Account pursuant to the following steps:
(1) The Employer Contributions and Forfeitures will be
allocated to each such Participant's Employer Contribution
Account in the ratio that each Active Participant's Compensation
plus his or her Excess Compensation, as defined in Section 4.1,
for the Plan Year bears to the total of such sums for all Active
Participants, provided the amount credited to any Participant's
Account for the Plan Year does not exceed the sum of his or her
Compensation plus Excess Compensation for the Plan Year times a
percentage equal to the greater of (i) 5.7% or (ii) the tax rate
imposed on Employers under Code Section 3111(a) which is
attributable to old-age insurance (as in effect on the first day
of the Plan Year).
(2) Next, any remaining Employer Contributions and Forfeitures
will be allocated to all Active Participants in the ratio that
each such Participant's Compensation for the Plan Year bears to
all Active Participants' Compensation for that Year.
(c) Participant 401(k) Contributions: As of each Valuation Date, a
Participant's 401(k) Contributions for the period ending on the
Valuation Date shall be allocated to his or her 401(k) Contribution
Account.
Section 5.3-Maximum Additions: Notwithstanding anything contained
herein to the contrary, the total Additions made to the Accounts of a
Participant for any Limitation Year shall not exceed the lesser of $30,000
or 25% of the Participant's compensation for such Limitation Year. For
purposes of this limitation, all defined contribution plans of the
Employer shall be treated as one plan. However, the sum of $30,000 shall
be adjusted to take into account any increase in the cost of living as
provided by law.
If such Additions exceed the limitation and if such excess is the
result of the allocation of Forfeitures, a reasonable error in estimating
compensation or a reasonable error in determining the amount of elective
deferrals, within the meaning of Code Section 402(g)(3), then a correction
shall be made. Initially, excess elective deferrals (including any Income
earned thereon, if necessary) shall be returned to each applicable
Participant and/or shall be allocated to a suspense account and held there
for allocation to each such Participant as soon as possible after the Plan
Year in which the excess deferral occurred. To the extent such techniques
fail to eliminate the excess completely, then the remaining excess shall
be allocated to a suspense account and held there until the next
succeeding date on which Employer Contributions could be applied under the
Plan. In the event of termination of the Plan, any suspense account shall
revert to the Employer to the extent it may not be allocated to the
Account of any eligible Participant.
Compensation, for purposes of this Section only, for the applicable
Limitation Year means wages within the meaning of Code Section 3401(a) and
all other payments of compensation to an Employee by the Employer (in the
course of the Employer's trade or business) for which the Employer is
required to furnish the Employee a written statement under Code Section
Section 6041(d), 6051(a)(3), and 6052. Compensation must be determined
without regard to any rules under Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for
agricultural labor in Section 3401(a)(2)). This definition of
compensation may be modified to exclude amounts paid or reimbursed by the
Employer for moving expenses incurred by an Employee, but only to the
extent that at the time of the payment it is reasonable to believe that
these amounts are deductible by the Employee under Code Section 217.
CHAPTER 6
Benefits
Section 6.1-Retirement or Disability: If a Participant's employment
with the Employer terminates at or after he or she incurs a Disability or
attains age 59-1/2 (but age 55 for Participants who became Participants
prior to January 1, 1984), he or she shall be entitled to receive his or
her benefits, determined in accordance with Section Section 6.3 and 6.4,
within 60 days after the end of the Plan Year in which such termination
occurs. Also see Section 13.12 regarding certain Disability payments.
Section 6.2-Death: If a Participant's termination of employment is
caused by his or her death, the Participant's benefits shall be paid to
the Participant's Beneficiary in accordance with Section Section 6.3 and
6.4 after receipt by the Committee of acceptable proof of death and the
Beneficiary's election for payment.
Section 6.3-Vesting and Termination of Employment: A Participant
shall be entitled to receive the entire amount credited to his or her
Accounts if the Participant's termination of employment occurs because of
death or Disability or on or after the age of 59-1/2 (but age 55 if the
Participant became a Participant prior to January 1, 1984), regardless of
the Participant's Years of Service. If a Participant's employment with
the Employer terminates at a time or for a reason other than those
specified in the preceding sentence, the Participant shall be entitled to
the sum of:
(a) The entire amount credited to all of his or her Accounts, other
than his or her Employer Contribution Account, plus
(b) An amount equal to the "vested percentage" of his or her
Employer Contribution Account. Such vested percentage shall be
determined in accordance with the following schedule:
If the Participant's His/Her Vested
Years of Service are: Percentage Is:
Less than 3 0%
3 but less than 4 20%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
The vested percentage and Years of Service for an individual who was
a Participant prior to January 1, 1989 shall be the greater of the vested
percentage and Years of Service determined under this Section or under the
Plan in effect at any time prior to January 1, 1989, had the same been
continued without amendment.
If a distribution is made at a time when a Participant is less than
100% vested:
(a) A separate account will be established for the Participant's
interest in the Plan as of the time of the distribution, and
(b) At any relevant time, the Participant's nonforfeitable portion
of the separate account will be equal to an amount ("X") determined
by the formula:
X = P[AB + (R x D)] - (R x D)
For purposes of applying this formula: "P" is the nonforfeitable
percentage at the relevant time; "AB" is the account balance at the
relevant time; "D" is the amount of the distribution; and "R" is the ratio
of the account balance at the relevant time to the account balance after
distribution.
Section 6.4-Payment of Benefits: Upon a Participant's entitlement to
payment of benefits, he or she shall file with the Trustee his or her
election for payment in such manner, and subject to such conditions, as
the Trustee or Committee shall provide. The Participant's election shall
specify the time and method of benefit payment in accordance with this
Chapter.
No portion of the Participant's benefits shall be distributed prior
to the earlier of the Participant's death or attainment of Normal
Retirement Age unless within the 90-day period ending on the date payment
is to be made the Participant consents in writing to the distribution.
The Participant's consent shall not be valid unless the Committee provides
the Participant with a written notification which satisfies the notice
requirements of Code Section Section 402(f) and 411(a)(11). Such
notification shall inform the Participant of the right to defer the
distribution until the earlier of the Participant's death or attainment of
Normal Retirement Age, shall include a general description of the material
features, and an explanation of the relative values of, each method of
payment permitted hereunder, and shall notify the Participant of the
following: the rules under which he or she has the right to direct
payment of any "eligible rollover distribution" to an "eligible retirement
plan" pursuant to Code Section 401(a)(31), hereinafter called a "direct
rollover"; the rules under which the Plan shall withhold 20% of the
distribution for federal income tax purposes unless the distribution is
paid in a direct rollover; the rules under which the Participant will not
be subject to tax if the distribution is rolled over within 60 days of the
distribution to another eligible retirement plan; and, if applicable, the
special rules regarding the taxation of the distribution as described in
Code Section 402(d). The Committee shall provide the written notification
no less than 30 days and no more than 90 days prior to the date payment is
to be made; provided, however, unless the Committee adopts a policy to the
contrary, payment may be made less than 30 days after said notification is
given if a Participant waives the 30-day notice requirement. The
Participant's waiver shall not be given effect unless the Committee
informs the Participant in writing that the Participant has a right to a
period of at least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if applicable, a
particular distribution option) and the Participant, after receiving
notice, affirmatively elects that the distribution occur within said 30
days. Notification of the applicable foregoing distribution rules shall
be provided to the Participant's spouse, surviving spouse or former
spouse, as the case may be, if payment is to be made to such spouse on
account of the Participant's death or on account of a Qualified Domestic
Relations Order in accordance with Internal Revenue Service requirements.
The provisions of this paragraph shall be effective January 1, 1993.
The Trustee shall at any time after the Participant's termination of
employment be bound by a Participant's election under this Section and
shall follow a Participant's Beneficiary designation. If the Participant
dies before the payment of benefits has commenced, however, the
Beneficiary shall make the elections set forth in the preceding paragraph,
subject to the restrictions set forth later in this Section. Any such
Beneficiary must elect the method of distribution no later than the
earlier of (1) December 31 of the calendar year in which distribution
would be required to begin under this Section, or (2) December 31 of the
calendar year which contains the fifth anniversary of the death of the
Participant. If the Participant dies after the payment of benefits has
commenced, the method of payment shall continue unchanged unless the
Beneficiary elects another form of payment provided hereunder.
Payment of a Participant's benefits must commence no later than 60
days after the last day of the Plan Year following the later of the
Participant's attainment of Normal Retirement Age or his or her actual
retirement date, unless the Participant's death occurs earlier, and no
sooner than as soon as feasible following a Participant's termination of
employment (except as otherwise provided herein). Notwithstanding the
foregoing, benefits must commence for any Participant no later than
April 1 of the calendar year following the calendar year in which he or
she attains age 70-1/2, even though still employed (unless otherwise
extended by the Code and regulations thereunder).
Pursuant to the Participant's election, the Trustee shall distribute
the Participant's benefits in any one or more of the following methods:
(a) Lump Sum. By payment in a lump sum to the Participant.
(b) Installments. By payment in installments over a period certain
which does not extend beyond the life expectancy of the Participant
or the joint life and last survivor expectancy of such Participant
and the Participant's Beneficiary, determined in accordance with
Treasury Regulation Section 1.72-9, as amended from time to time, or
such other table as may be required by law. For purposes of this
computation, life expectancies may be recalculated no more frequently
than annually, but the life expectancy of a non-spouse Beneficiary
may not be recalculated. Unless elected otherwise, life expectancies
shall not be recalculated. The amount to be distributed each year,
beginning with distributions for the first distribution year during
which the Participant attains age 70-1/2, shall not be less than the
quotient obtained by dividing the Participant's benefit by the lesser
of (1) the applicable life expectancy, as defined in Q&A F-1 of
section 401(a)(9)-1 of the Income Tax Regulations or (2) if the
Participant's spouse is not the designated beneficiary, the
applicable divisor obtained from the table set forth in Q&A-4 of
section 1.401(a)(9)-2 of the Income Tax Regulations. Distributions
after the death of the Participant shall be distributed using the
applicable life expectancy determined above as the relevant divisor
without regard to Treasury Regulation Section 1.401(a)(9)-2. Said
payments shall be made in installments not less frequently than
annually. The unpaid balance shall receive Income allocations in
accordance with Section 5.2(a).
(c) Non-Periodic Withdrawals. By payment at the time and in the
manner specified from time to time by the Participant in accordance
with this Chapter.
(d) Direct Rollover. By payment in a direct rollover to an
"eligible retirement plan" pursuant to and to the extent permitted
under Code Section 401(a)(31). In addition to electing one or more
of the methods of payment described in subsections (a), (b) or (c)
above, the Participant may elect to receive such payment(s) in the
form of a direct rollover. A direct rollover shall only be available
to the Participant with respect to a lump sum distribution, each
installment which is not one of a series of substantially equal
periodic payments made for a specified period of 10 years or more or
over the life (or life expectancy) of the Participant or the joint
lives (or joint life expectancies) of the Participant and the
Participant's beneficiary, and with respect to any other distribution
which qualifies as an "eligible rollover distribution" under the
Code. The Participant may elect the direct rollover method of
payment for all or any portion of each eligible rollover
distribution, subject to Committee rules. In addition to being
available to the Participant, the direct rollover shall be available
to the Participant's spouse, surviving spouse or former spouse, as
the case may be, if payment is to be made to such spouse on account
of the Participant's death or on account of a Qualified Domestic
Relations Order. The direct rollover shall not be available to any
other recipient of the Participant's benefits. The Committee shall
prescribe rules and procedures which shall be uniformly applied to
similarly-situated Participants which are appropriate to administer
direct rollovers or limit their availability in accordance with the
Code and Internal Revenue Service guidance. The provisions of this
subsection (d) shall be modified to the extent required under the
Code or Internal Revenue Service announcements. The provisions of
this subsection (d) are effective January 1, 1993.
Notwithstanding any other provision herein to the contrary, if a
Participant's or Beneficiary's vested Account balances do not exceed (nor
at the time of any prior distribution exceeded) $3,500, the vested
Accounts shall be paid as soon as feasible in the form of a lump sum
distribution (or, if the Participant or Beneficiary who is a spouse
elects, in the form of a direct rollover) without the consent of the
Participant (or the Participant's Beneficiary in the event of payment on
the Participant's death). For purposes of this Section, if the value of a
Participant's vested Account balances is zero, the Participant shall be
deemed to have received a distribution of such vested Account balances.
The provisions of this paragraph are effective January 1, 1993.
Distributions hereunder shall be based upon the value of the
Participant's vested benefits as of a Valuation Date preceding the date of
distribution in accordance with uniformly applied procedures.
To the extent not excepted by regulations of the Secretary of the
Treasury, any amendment to the Plan which eliminates an optional form of
benefit shall be ineffective with respect to amounts accrued on behalf of
a Participant prior to the time of amendment.
If a Participant dies after benefits have commenced under (b) above
after age 70-1/2, but before all the benefits are distributed to him or her,
the remaining amount must be distributed at least as rapidly as would have
occurred under the original benefit payment method. If such payments have
not commenced to the Participant or if distribution has been commenced to
a surviving spouse and the spouse dies before all the benefits are
distributed, the entire remaining amount shall be distributed no later
than December 31 of the calendar year containing the fifth anniversary of
the Participant's death; provided, however, such limit may be disregarded
if an election is made in accordance with (a) or (b) below:
(a) Distributions to a Beneficiary may be made in substantially
equal installments not less frequently than annually over the
life expectancy of the Beneficiary commencing on or before
December 31 of the calendar year immediately following the
calendar year in which the Participant died.
(b) Distributions to a Beneficiary who is the Participant's spouse
shall not be required to begin under (a) above earlier than the
later of (1) December 31 of the calendar year in which the
Participant died and (2) December 31 of the calendar year in
which the Participant would have attained age 70 1/2.
For purposes of (a) and (b) above, payments will be determined in
accordance with Treasury Regulation Section 1.72-9. The life expectancy
of a Beneficiary who is a spouse will be recalculated annually only if the
Participant or spouse make an election to recalculate. In the case of any
other Beneficiary, the life expectancy will be calculated only once at the
time payment first commences.
All distributions required under this Section shall be determined and
made in accordance with the Income Tax Regulations under Code Section
401(a)(9), including the minimum distribution incidental benefit
requirement of Treasury Regulation Section 1.401(a)(9)-2. In addition,
notwithstanding any other provision herein, benefits shall be paid at such
times and in such manner as specified by a Participant who filed, before
January 1, 1984, a valid election made pursuant to Section 242(b)(2) of
TEFRA. The distribution options set forth above shall be deemed amended
to the extent necessary to comply with any such valid election form.
Section 6.5-Hardship and In-Service Distributions: Any Participant
prior to age 59-1/2 shall be eligible for a hardship distribution from his
or her 401(k) Contribution Account upon proof that the distribution is on
account of:
(a) Medical expenses, as described in Code Section 213(d) incurred
by or necessary for the Participant, his or her spouse or dependents
(as defined in Code Section 152);
(b) Purchase (excluding mortgage payments) of a principal residence
for the Participant;
(c) Payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the Participant,
his or her spouse or dependents; or
(d) Prevention of the Participant's eviction from his or her
principal residence or foreclosure of any mortgage on the
Participant's principal residence.
The distribution shall not exceed the value of his or her 401(k)
Contribution Account (less any Income credited after December 31, 1988)
nor the amount of the immediate and heavy financial need of the
Participant (including amounts necessary to pay any federal, state or
local income taxes or any withholding or penalties reasonably anticipated
to result from the distribution). Prior to becoming eligible for a
hardship distribution, the Participant must have obtained all
distributions for which he or she is eligible, other than hardship
distributions, and all non-taxable loans currently available under this or
any other plan maintained by the Employer. In addition, any Participant
who is granted a hardship distribution shall have his or her right to make
401(k) and employee contributions suspended under this Plan and all other
qualified and nonqualified plans of deferred compensation maintained by
the Employer. The suspension will begin as soon as administratively
practicable upon the Committee's approval of the distribution and shall
end on the first day of the month following the one year anniversary of
the commencement of the suspension. Further, during the calendar year
following the hardship distribution, the 401(k) contributions of such a
Participant shall be limited to the excess of the applicable limit under
Code Section 402(g) for that calendar year over the amount of the
Participant's 401(k) contributions for the calendar year of the hardship
distribution.
A Participant who has attained age 59-1/2 may elect to withdraw all or
any portion of his or her 401(k) Contribution Account and/or Rollover
Contribution Account. As of the Participant's Normal Retirement Age, the
Participant may elect to withdraw all or any portion of his Employer
Contribution Account.
The direct rollover method of payment and the notification rules
described in Section 6.4 shall be offered to the Participant who is to
receive a hardship or other in-service distribution except to the extent
the Code or Internal Revenue Service provide otherwise.
Section 6.6-Designation of Beneficiary: Each Participant from time
to time may designate any person or persons (who may be designated
contingently or successively and who may be an entity other than a natural
person) as the Participant's Beneficiary or Beneficiaries to whom the Plan
benefits are paid if he or she dies before receipt of all such benefits.
Each beneficiary designation shall be in a form agreed by the Trustee and
Committee and will be effective only when filed with the Committee or
Trustee during the Participant's lifetime. Each beneficiary designation
filed will cancel all beneficiary designations previously filed.
The payment of a Participant's benefits must be made to his or her
surviving spouse, if the Participant is married at death, unless the
spouse has consented otherwise, in writing, witnessed by a notary public
and acknowledging the effect of the consent. Section 6.4 shall govern the
method of payments to Beneficiaries in all other respects.
If a Participant or Former Participant fails to designate a
Beneficiary, or if no Beneficiary survives the Participant or Former
Participant, the amount payable upon the death of the Participant or
Former Participant shall be paid in accordance with the following
priority:
(a) to the Participant's surviving spouse, or if there be none
surviving,
(b) to the Participant's estate.
CHAPTER 7
Trust Fund
All contributions under this Plan shall be paid to the Trustee and
deposited in the Trust Fund. All assets of the Trust Fund, including
Income, shall be retained for the exclusive benefit of Participants,
Former Participants, and Beneficiaries and shall be used to pay benefits
to such persons or to pay administrative expenses of the Plan and Trust
Fund to the extent not paid by the Employer and shall not revert to or
inure to the benefit of the Employer. The Trustee shall be accountable
for all contributions it has received, but shall have no duty to determine
that the amounts thereof comply with the provisions of the Plan.
Notwithstanding the foregoing, in the event (1) any contribution or
portion thereof is made by the Employer by a mistake of fact, (2) the Plan
does not initially qualify under Code Section 401(a), or (3) deductibility
of a contribution or part thereof is denied, upon such event the Trustee
shall, upon written request of the Employer, return the amount of
contribution to the Employer within one year of the mistake, denial of
initial qualification, or disallowance of the deduction. However,
earnings attributable to such contribution (or any disallowed portion
thereof) shall remain in the Trust Fund, and the amount returned to the
Employer shall be reduced by any losses attributable to such contribution
or portion thereof. In the case of a contribution conditioned upon
initial qualification of the Plan, the amount to be returned shall be the
contributions actually made, adjusted for the investment experience of,
and any expenses chargeable against, the portion of the Trust Fund
attributable to the contributions actually made. The Trustee shall be
indemnified and saved harmless by the Employer for and against any and all
personal liability to which the Trustee may be subjected by reason of any
act done or omitted to be done in its official capacity in good faith in
the administration of the Plan by carrying out any directions of the
Committee or the Employer issued in accordance with this Plan, and the
Employer shall reimburse the Trustee for all expenses reasonably incurred
in its defense in the event the Employer fails to provide such defense.
CHAPTER 8
Administration of Plan
Section 8.1-Allocation of Responsibility Among Fiduciaries for Plan
and Trust Administration: The fiduciaries shall have only those specific
powers, duties, responsibilities and obligations as are specifically given
them under this Plan. In general, each Employer shall have the sole
responsibility for making the contributions provided for under Section
4.1, and the Principal Employer shall have the sole authority to appoint
and remove the Trustee and any Investment Manager which may be provided
for under the Plan, and to amend or terminate, in whole or in part, this
Plan.
The Committee shall be the named fiduciary and plan administrator, as
those terms are defined by ERISA, and shall have the sole responsibility
for the administration of the Plan and for disclosing to the Participants
any information required by law.
The Trustee shall have the sole responsibility for the administration
of the Trust and the management of the assets held under the Trust, all as
specifically provided herein, unless an Investment Manager has been
appointed.
The Investment Manager, if one is appointed, shall have such of the
duties of the Trustee as are assigned to it by the Principal Employer in
writing and are also assignable under this Plan.
Each fiduciary warrants that any directions given, information
furnished, or action taken by it shall be in accordance with the pro-
visions of the Plan, authorizing or providing for such direction,
information or action. Furthermore, each fiduciary may rely upon any such
direction, information or action of another fiduciary as being proper
under this Plan, and is not required under this Plan to inquire into the
propriety of any such direction, information or action. It is intended
under this Plan that each fiduciary shall be responsible for the proper
exercise of his, her or its own powers, duties, responsibilities and
obligations under this Plan and shall not be responsible for any act or
failure to act of another fiduciary. No fiduciary guarantees the Trust
Fund in any manner against investment loss or depreciation in asset value.
Section 8.2-Appointment of Committee: The Profit Sharing Committee
shall consist of those persons that the Board of Directors of the
Principal Employer from time to time designates. Currently, the Committee
consists of seven members, as follows: a salaried mill representative, a
representative from Plas-Techs, Inc., a salaried non-exempt
representative, a salaried exempt representative, and three management
representatives.
Section 8.3-Claims Procedure: The Committee shall make all deter-
minations as to the right of any person to a benefit. Any denial by the
Committee of the claim for benefits under the Plan by a Participant or
Beneficiary shall be stated in writing by the Committee and delivered or
mailed to the Participant or Beneficiary within 90 days after the claim is
made. Such notice shall set forth the specific reasons for the denial,
the relevant Plan provisions and a description of the steps the
Participant must take to appeal the decision, written to the best of the
Committee's ability in a manner that may be understood without legal or
actuarial counsel.
The Board of Directors of the Principal Employer shall afford a
reasonable opportunity to any Participant or Beneficiary whose claim for
benefits has been denied by the Committee for a review of the decision
denying the claim if a request for review is made in writing no more than
60 days after the claim has been denied. The decision of the Board shall
be in writing, shall be made within 60 days of receiving the request for
review, shall set forth the specific reasons underlying the conclusions
reached, including citations to the relevant Plan provisions, and shall be
final.
Section 8.4-Records and Reports: The Committee shall exercise such
authority and responsibility as it deems appropriate in order to comply
with ERISA and governmental regulations issued thereunder relating to
records of Participant's service, Account balances and the percentage of
such Account balances which are nonforfeitable under the Plan; and annual
reporting with the Internal Revenue Service. Whenever necessary to carry
out any of its duties, the Committee may request that the Employer furnish
to it the appropriate employment records of any Employee. The Employer
shall certify the accuracy of such records and promptly submit the records
if requested. The Committee shall be entitled to rely on the accuracy of
such records in making any determination under this Plan.
Section 8.5-Other Committee Powers and Duties: The Committee shall
have such duties and powers as may be necessary to discharge its duties
hereunder, including, but not by way of limitation, the following:
(a) to construe and interpret the Plan, decide all questions of
eligibility and determine the amount of any benefits hereunder;
(b) to prescribe procedures to be followed by Participants or
Beneficiaries filing applications for benefits;
(c) to receive from the Employer and from Participants such
information as shall be necessary for the proper administration of
the Plan;
(d) to furnish the Employer, upon request, such annual reports with
respect to the administration of the Plan as are reasonable and
appropriate;
(e) to appoint or employ individuals to assist in the administration
of the Plan and any other agents it deems advisable, including legal
and actuarial counsel, provided the Principal Employer approves of
such appointment;
(f) to notify and disclose information concerning the Plan to
Participants and distribute information to them;
(g) to allocate and/or charge to the proper accounts of
Participants, Beneficiaries and/or alternate payees, in an equitable
manner and to the extent allowed under ERISA, the expenses of the
Plan related to investment designations and/or the evaluation as to
whether a domestic relations order is a Qualified Domestic Relations
Order, and/or to allow reimbursement to the Plan for such expenses by
the Participant, Beneficiary or Former Participant;
(h) to the extent it exercises this right, to provide investment
instructions to the Trustee and to establish funding and investment
policies for the Trustee.
The Committee shall have no power to add to, subtract from or modify
any of the terms of the Plan, or to change or add to any benefits provided
by the Plan, or to waive or fail to apply any requirements of eligibility
for a benefit under the Plan.
Section 8.6-Rules and Decisions: The Committee may adopt such rules
as it deems necessary, desirable, or appropriate. All rules and decisions
of the Committee shall be uniformly and consistently applied to all
Participants in similar circumstances. When making a determination or
calculation, the Committee shall be entitled to rely upon information
furnished by a Participant or Beneficiary, the Employer, the legal counsel
of the Employer, or the Trustee.
Section 8.7-Committee Procedures: The Committee may act at a meeting
or in writing without a meeting. The secretary of the Committee, who need
not be a Committee member, may keep a record of all meetings. The
Committee may adopt such bylaws and regulations as it deems desirable for
the conduct of its affairs. All decisions of the Committee shall be made
by the vote of the majority including actions in writing taken without a
meeting.
Section 8.8-Application and Forms for Benefits: The Committee may
require a Participant to complete and file with the Committee an
application for a benefit on forms approved by the Committee and to
furnish all pertinent information requested by the Committee. The
Committee may rely upon all such information so furnished it, including
the Participant's current mailing address.
Section 8.9-Facility of Payment: Whenever, in the Committee's
opinion, a person entitled to receive any payment of a benefit or in-
stallment thereof hereunder is under a legal disability or is incapaci-
tated in any way so as to be unable to manage his or her financial
affairs, the Committee may direct the Trustee to make payments to such
person or to his or her legal representative for the benefit of such
person in such manner as the Committee considers advisable. Any payment
of a benefit or installment thereof in accordance with the provisions of
this Section shall be a complete discharge of any liability for the making
of such payment under the provisions of the Plan.
Section 8.10-Evidence of Employer's Actions: Any action by the
Employer pursuant to any of the provisions of this Plan shall be evidenced
by resolution of the Board of Directors of the Employer, or by written
instrument executed by any person authorized by any such resolutions to
take such action; and the Trustee shall be fully protected in acting in
accordance with such resolutions or such written instrument.
Section 8.11-Evidence of Committee's Actions: All orders, requests,
and instructions of the Committee to the Trustee shall be in writing
signed by one of its members or by its Secretary (whose identity shall
have been certified to the Trustee by a member of the Committee), and the
Trustee shall act and shall be fully protected in acting in accordance
with such orders, requests, and instructions, and shall have no duty to
see to the application of any funds paid in accordance therewith. The
Secretary of the Principal Employer will certify to the Trustee the
appointment and termination of office of members of the Committee and the
Trustee shall not be charged with knowledge thereof until they receive
such notice.
Section 8.12-Evidence in Writing: Evidence required of anyone under
this Plan may be by certificate, affidavit, endorsement or any other
written instrument which the person acting in reliance thereon reasonably
believes to be pertinent, reliable and genuine, and to have been signed,
made or presented by the proper party or parties.
CHAPTER 9
Administration of Trust
Section 9.1-Trustee's Powers: Except as provided in any of the
following Sections of this Chapter, the Trustee is authorized and em-
powered, but not by way of limitation:
(a) to invest and reinvest the principal and income of the Trust
Fund without distinction between principal and income, in such
stocks, bonds, notes, mortgages or other obligations, trust and
participation certificates, leaseholds, mutual funds, collective
investment trust funds qualified under Section 501(a) of the Code or
any common trust funds qualified under Section 584 of the Code now or
hereafter established and maintained by the Trustee, or any affiliate
thereof, or any agent of either, or in such other property or
interest therein, whether real or personal as the Trustee deems
proper, provided that the indicia of ownership of all such
investments are maintained within the jurisdiction of the district
courts of the United States;
(b) to keep any cash from time to time held hereunder on deposit,
and the Trustee shall not be required to pay interest on any cash
balances they hold and to deposit all or part of the Trust Fund in
deposits bearing a reasonable rate of interest in any bank or savings
institution including the banking department of Trustee, if
applicable;
(c) to sell, exchange, convey, transfer or otherwise dispose of any
property, and no person dealing with the Trustee shall be bound to
see to the application of the purchase money or property delivered to
the Trustee, or to inquire into the validity, expedience or propriety
of any such sale or other disposition, or to inquire into the terms
of the Trust, or to see that such terms are complied with;
(d) to vote upon any stocks, bonds or other securities; to give
general or special proxies or powers of attorney with or without
power of substitution; to exercise any conversion privileges, sub-
scription rights or other options and to make any payments incidental
thereto; to consent to or otherwise participate in corporate
reorganizations or other changes affecting corporate securities and
to delegate discretionary powers and to pay any assessments or
charges in connection therewith; and generally to exercise any of the
powers of an owner with respect to stocks, bonds, securities or other
property held in the Trust Fund;
(e) to make, execute, acknowledge and deliver any and all documents
of transfer and conveyance and any and all other instruments that may
be necessary or appropriate to carry out the powers herein granted;
(f) to register any investment held in the Trust Fund in the name of
the Trust or in the name of a nominee and to hold any investment in
bearer form, but the books and records of the Trustee shall at all
times show that all such investments are part of the Trust Fund;
(g) to invest the assets of the Trust Fund jointly with those of
similar trusts, exempt under Section 501(a) of the Code, maintained
by the Employer or any other member of the same controlled group of
corporations as the Employer, or to use the same trust for the
investment of all such assets; and
(h) to do all acts, whether or not expressly authorized, which they
may deem necessary or proper for the protection of the property held
hereunder.
To the extent of the participation of this Trust in any collective
investment fund or common trust fund, such fund, as evidenced by its Plan
of Operation, is hereby adopted and made a part of the Plan of which this
Trust is a part, and any funds of this Trust invested in any such
collective investment fund or common trust fund shall be subject to all
the provisions thereof, as the same may be amended from time to time.
The Trustee shall perform all acts within its authority under this
Plan for the exclusive purposes of providing benefits to Participants in
the Plan and their Beneficiaries and defraying reasonable expenses of
administering the Plan and Trust, and shall perform such acts with the
care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent person 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. Subject to the terms of the preceding
sentence, the Trustee shall diversify the investments of the Trust Fund so
as to minimize the risk of large losses.
Section 9.2-Expenses of Plan and Trustee: The expenses incurred in
the administration of the Plan and Trust Fund, including those incurred by
the Trustee and for brokerage commissions, shall be paid from the Trust
Fund, to the extent not paid or reimbursed by the Employer. All taxes of
any and all kinds whatsoever that may be levied or assessed under existing
or future laws upon the Trust Fund or the income thereof and investment
charges, shall be paid from the Trust Fund.
Section 9.3-Liability of Trustee: The Trustee shall not be liable
for any act or failure to act of the Employer or Committee in the per-
formance of their responsibilities under the terms of the Plan and Trust
or ERISA. A Trustee shall not be liable for any act or failure to act of
a predecessor Trustee.
Section 9.4-Records and Accounting: The Trustee shall hold all
assets of the Trust Fund and keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions hereunder, and
all accounts, books and records relating thereto shall be open to
inspection and audit at all reasonable times by any person designated by
the Employer. All accounting shall be done using the accrual basis method
of accounting, as modified to the extent deemed necessary by the Trustee.
As of the close of the Plan Year and as of such other times as may be
requested from time to time by the Employer, the Trustee shall file with
the Employer a written account setting forth all investments, receipts,
disbursements and other transactions effected by the Trustee during such
year and a list of the assets of the Trust Fund, valued at fair market
value, at the close of such Plan Year. Such account shall be in the form
agreed by the Employer and Trustee. Before the expiration of six (6)
months from the date of filing any such account, the Employer shall file
its written objections, if any, with the Trustee with respect to the
propriety of the acts and transactions shown in such account.
Section 9.5-Removal of Trustee: The Trustee may be removed by the
Principal Employer at any time upon thirty (30) days' notice in writing to
the Trustee. The Trustee may resign at any time upon thirty (30) days'
notice in writing to the Principal Employer. In either case, the
necessity for such thirty (30) days' notice may be waived by the mutual
agreement of the Trustee and the Principal Employer. Upon the removal or
resignation of a Trustee, the Principal Employer shall, subject to the
requirements of Section 411 of ERISA, appoint a successor Trustee who
shall have the same powers and duties as those conferred upon the removed
or resigned Trustee. For any reason whatsoever, the Principal Employer
may, at any time, appoint a successor Trustee or Trustees, other than as
heretofore provided, and any such successor Trustee or Trustees may be
either an individual or individuals or a corporation authorized by law to
administer trusts. Acceptance as successor Trustee shall be evidenced by
the successor's endorsement hereto, and upon such acceptance the successor
shall have the same title, rights, powers, duties, discretions and
immunities as the Trustee.
Section 9.6-Investment Manager: The Principal Employer may appoint
an Investment Manager for all or any portion of the Trust Fund with any or
all of the powers set forth in Section 9.1, subject to the restrictions of
that Section on the performance of its duties. In such event, the
Investment Manager may be removed in the manner provided in Section 9.5
for removal of a Trustee. The Trustee shall not be liable for any act or
failure to act of any Investment Manager in the performance of responsi-
bilities assigned to the Investment Manager, nor shall the Investment
Manager be liable for anything other than the performance of duties
specifically assigned to it.
Section 9.7-Investment Instructions: A Participant, Former
Participant or Beneficiary shall have the right to specify the manner in
which the Trustee shall invest his or her Accounts, choosing from among
the investment funds made available by the Committee from time to time.
The portion of Accounts to be invested in each such fund and the timing of
each investment shall be made in accordance with the written designation
of each Participant pursuant to procedures adopted by the Committee. If a
Participant, Former Participant or Beneficiary does not designate how part
or all of his or her Accounts are to be invested, they shall be invested
according to the most recent designation furnished to the Trustee, or, if
no designation has been executed, they shall be invested in the investment
fund which is identified by the Committee to the Trustee.
In accordance with procedures established by the Committee and with
the concurrence of the Trustee, the Trustee is authorized to accept and
carry out directions from Participants, via telephone communication or
otherwise and without obtaining prior confirmation or authorization from
the Committee, as to the investment funds in which subsequent
Contributions and current Account Balances, in whole or in part, are to be
invested. Any other provisions of this Plan notwithstanding, neither any
Employer, the Committee, the Trustee nor any other person who is otherwise
a fiduciary with respect to the Plan shall incur any liability to anyone
for any loss or expense sustained by any Participant's Account because of
any asset acquired, retained or disposed of by the Trustee or any other
actions taken by the Trustee in accordance with the investment directions
given by a Participant, Former Participant or Beneficiary pursuant to the
Plan.
CHAPTER 10
Amendments and Action by Employer
Section 10.1-Amendments: The Principal Employer reserves the right
to make from time to time any amendment or amendments to this Plan which
do not cause any part of the Trust Fund to be used for, or diverted to,
any purpose other than the exclusive benefit of Participants, Former
Participants or their Beneficiaries; provided, however, the Principal
Employer may make any amendment it determines necessary or desirable, with
or without retroactive effect, to comply with ERISA, the Code or other
applicable federal legislation. Any amendment by the Principal Employer
shall be binding upon and be deemed to be adopted by any Affiliate that
has adopted the Plan.
Section 10.2-Amendments to Vesting Schedule: If the Plan's vesting
schedule is amended (or the Plan is affected in any way which directly or
indirectly affects the calculation of the Participant's nonforfeitable
percentage in his Accounts), each Participant whose nonforfeitable
percentage in one or more of his Accounts is determined under such
schedule as amended and who has completed at least three (3) Years of
Service (prior to the expiration of the election period described in this
Section) may irrevocably elect to have his nonforfeitable percentage
determined without regard to such amendment. The Committee shall provide
each such Participant with written notice of the adoption of the amendment
and the availability of the election. The election must be in writing and
must be filed with the Committee during the period beginning on the date
the amendment is adopted and ending on the latest of the following: (a)
the date sixty (60) days after the date the amendment is adopted; (b) the
date sixty (60) days after the date the amendment becomes effective; or
(c) the date sixty (60) days after the date the Participant is issued
written notice of the amendment.
Section 10.3-Action by Employer: Any action by each Employer under
this Plan may be by resolution of its Board of Directors or other
governing body, or by any person or persons duly authorized by resolution
of said Board or body to take such action.
CHAPTER 11
Successor Employer and Merger or
Consolidation of Plans
Section 11.1-Successor Employer: In the event of the dissolution,
merger, consolidation or reorganization of any Employer, provision may be
made by which the Plan and Trust will be continued by the successor; and,
in that event, such successor shall be substituted for the Employer under
the Plan. The substitution of the successor shall constitute an
assumption of Plan liabilities by the successor and the successor shall
have all of the powers, duties and responsibilities of the Employer under
the Plan.
Section 11.2-Plan Assets: In the event of any merger or consoli-
dation of the Plan with, or transfer in whole or in part of the assets and
liabilities of the Trust Fund to another trust fund held under, any other
plan of deferred compensation maintained or to be established for the
benefit of all or some of the Participants of this Plan, the assets of the
Trust Fund applicable to such Participants shall be transferred to the
other trust fund only if:
(a) each Participant would (if either this Plan or the other plan
then terminated) receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the
benefit he or she would have been entitled to receive immediately
before the merger, consolidation or transfer (if this Plan had then
terminated);
(b) resolutions of the Board of Directors of the Employer under this
Plan, or of any new or successor employer of the affected
Participants, shall authorize such transfer of assets; and, in the
case of the new or successor employer of the affected Participants,
its resolutions shall include an assumption of liabilities with
respect to such Participants' inclusion in the new employer's plan,
and
(c) such other plan and trust are qualified under Section Section
401(a) and 501(a) of the Code.
CHAPTER 12
Plan Termination
Section 12.1-Right to Terminate: In accordance with the procedures
set forth in this Chapter, any Employer may terminate the Plan at any time
with respect to its Employees. In the event of the dissolution, merger,
consolidation or reorganization of any Employer, the Plan shall terminate
with respect to its Employees and the Trust Fund shall be liquidated
unless the Plan is continued by a successor to the Employer in accordance
with Section 11.1.
Section 12.2-Partial Termination: Upon termination of the Plan with
respect to a group of Participants which constitutes a partial termination
of the Plan, as defined in the Code and regulations thereunder, the
Trustee shall, in accordance with the directions of the Committee,
allocate and segregate for the benefit of the Employees then or
theretofore employed by the Employer with respect to which the Plan is
being terminated the proportionate interest of such Participants in the
Trust Fund. The Accounts of each such Participant shall be fully vested
and nonforfeitable. The funds so allocated and segregated shall be used
by the Trustee to pay benefits to or on behalf of Participants in
accordance with Section 12.3.
Section 12.3-Liquidation of the Trust Fund: Upon termination of the
Plan, the Accounts of all Participants affected thereby shall become fully
vested, and the Committee shall direct the Trustee to distribute the
assets remaining in the Trust Fund, after payment of any expenses properly
chargeable thereto, to Participants, Former Participants and Beneficiaries
in proportion to their respective account balances.
Section 12.4-Manner of Distribution: To the extent that no dis-
crimination in value results, any distribution after termination of the
Plan may be made, in whole or in part, in cash, in securities or other
assets in kind, as the Trustee (in its discretion) may determine, in
accordance with the provisions of Section 6.4. All non-cash distributions
shall be valued at fair market value at date of distribution.
CHAPTER 13
Miscellaneous
Section 13.1-Nonguarantee of Employment: Nothing contained in this
Plan shall be construed as a contract of employment between any Employer
and any Employee, or as a right of any Employee to be continued in the
employment of the Employer, or as a limitation of the right of any
Employer to discharge any of its Employees, with or without cause.
Section 13.2-Rights to Trust Assets: No Employee or Beneficiary
shall have any right to, or interest in, any assets of the Trust Fund upon
termination of his employment or otherwise, except as provided from time
to time under this Plan, and then only to the extent of the benefits
payable under the Plan to such Employee out of the assets of the Trust
Fund. All payments of benefits as provided for in this Plan shall be made
solely out of the assets of the Trust Fund and none of the fiduciaries
shall be liable therefor in any manner.
Section 13.3-Nonalienation of Benefits: Benefits payable under this
Plan shall not be subject in any manner, except to the extent specifically
set forth in a Qualified Domestic Relations Order, to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution, or levy of any kind, either voluntary or
involuntary, prior to actually being received by the person entitled to
the benefit under the terms of the Plan; and any such attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or
otherwise dispose of any right to benefits payable hereunder, shall be
void. The Trust Fund shall not in any manner be liable for, or subject
to, the debts, contracts, liabilities, engagements or torts of any person
entitled to benefits hereunder.
Section 13.4-Discontinuance of Employer Contributions: In the event
of permanent discontinuance of contributions to the Plan by the Employer,
the Accounts of all Participants shall, as of the date of such
discontinuance, become nonforfeitable.
Section 13.5-Service of Process: With respect to any litigation
arising as a result of the terms of this Plan, service of process on the
Registered Agent of the Employer or on the Trustee shall constitute
service of process on all necessary parties to the litigations. The
person so served shall notify all necessary parties of the service of
process. The settlement of judgment in any such case in which service is
duly made shall be binding upon all Participants, Former Participants and
their Beneficiaries, contingent beneficiaries and estates, and upon all
persons claiming by, through, or under them.
Section 13.6-Missing Payee: In the event that any check in payment
of a benefit provided under the Plan has been dispatched by regular U. S.
Mail to the last address of the payee, and if such check is returned
unclaimed, the Trustee shall so notify the Employer and shall discontinue
further payments to such payee until it receives further instructions from
the Employer. If the payee cannot be found after one year of efforts to
locate him or her, the Employer may direct the Trustee to treat the amount
payable to the payee as a Forfeiture and allocate it pursuant to Section
5.2(b). If the payee is located after the benefits have been treated as a
Forfeiture, he or she shall be paid the amount treated as a Forfeiture,
without adjustment for Income thereafter. The amount paid to the payee
shall be funded by Income, Forfeitures or the Employer contribution for
the year in which paid.
Section 13.7-Applicable Law: This Plan shall be construed and
enforced under ERISA, the Code and the laws of the State of Wisconsin to
the extent not preempted by federal law and all provisions hereof shall be
administered in accordance with the provisions of Part 4 of Title I of
ERISA.
Section 13.8-Qualified Status of Trust: The Employer intends that
the Trust herein created shall be exempt from federal income taxation
under Section 501(a) of the Code, and until advised to the contrary, the
Trustee may assume that the Trust is so qualified and is entitled to tax
exemption.
Section 13.9-Top Heavy Rules: The provisions of this Section apply
only if the Plan is Top Heavy; however, the Plan is not currently Top
Heavy and is never anticipated to be Top Heavy. Thus, currently this
Section 13.9 has no applicability to the Plan but is included herein to
comply with Code qualification requirements.
(a) Definitions:
(1) Determination Date: The last day of the Plan Year pre-
ceding the Plan Year in which a Top Heavy Ratio is being cal-
culated.
(2) Five Percent Owner: Any person who owns (or is deemed to
own, pursuant to the attribution rules of Section 318 of the
Code) more than five percent (5%) of the Employer.
(3) Key Employee: Any Employee or former Employee (including
those who have died) or Beneficiary of either who at any time
during the Plan Year in question, or any of the four preceding
Plan Years, is:
(i) an officer of the Employer having annual compensation
greater than fifty percent (50%) of the limit on
Additions under Code Section 415(b)(1)(A) for any such
Plan Year,
(ii) one of the 10 persons owning both (after applying the
attribution rules in Code Section 318) the largest
interest and at least a five-tenths percent (.5%)
interest in the Employer and having annual compen-
sation from the Employer which exceeds the limit in
effect on Additions under Code Section 415(c)(1)(A),
(iii) a five percent (5%) owner of the Employer, or
(iv) a one percent (1%) owner of the Employer whose annual
compensation exceeds $150,000.00.
No more than fifty (50) Employees or, if lesser, the greater of
three (3) or ten percent (10%) of all of the Employees of the
Employer need be considered as officers. For purposes of (ii)
above, if two Employees own the same interest in the Employer,
the Employee having greater annual compensation from the Em-
ployer shall be treated as owning a larger interest. Annual
compensation means compensation as defined in Code Section
415(c)(3), but including amounts contributed by the Employer
pursuant to a salary reduction agreement which are excludible
from the employee's gross income under Code Section Section 125,
402(a)(8), 402(h) or 403(b). Interpretations of this subsection
shall be made using valid regulations promulgated under Code
Section 416.
(4) Non-Key Employee: Any Employee, including a Beneficiary
thereof, who is not a Key Employee.
(5) Permissive Aggregation Group: The Required Aggregation
Group plus any qualified plans maintained by the Employer, in-
cluding simplified employee pension plans, but only if such
group of plans in the aggregate would satisfy the requirements
of both Section 401(a)(4) and Section 410 of the Code.
(6) Required Aggregation Group: All of the qualified plans,
including simplified employee pension plans, maintained by the
Employer (i) in which at least one Key Employee participates,
and (ii) any other such qualified plan which enables a plan
described in (i) to meet the requirements of Section 401(a)(4)
or Section 410 of the Code.
(7) Top Heavy: A status attained by the Plan for any Plan Year
if the Top Heavy Ratio, as of the Determination Date, exceeds
sixty percent (60%).
(8) Top Heavy Ratio: A fraction, the numerator of which is the
sum of the present value of all of the Accounts of all Key Em-
ployees, except deductible participant contribution accounts and
Rollover Accounts, if any, and the denominator of which is a
similar sum for all Participants and Former Participants.
Distributions made during the Plan Year and each of the
preceding four Plan Years shall be included in both the
numerator and the denominator of the fraction. There shall not
be included, however, the Account of any person who has not
performed any service for the Employer during the year of
calculation or any of the preceding four Plan Years.
If the Employer maintains qualified plans other than this
Plan (including a simplified employee pension plan), the ratio
shall be calculated using all plans within a Required Aggrega-
tion Group, including those which, but for termination, would
have been part of such Group, and may be calculated using all
plans within a Permissive Aggregation Group.
(b) Minimum Allocation of Employer Contribution: In any Plan Year
in which this Plan is Top Heavy, there shall be allocated to the
Employer Contribution Account of each Participant who is a Non-Key
Employee an amount which at least equals the lesser of:
(1) three percent (3%) of the Non-Key Employee's compensation
for that Plan Year, or
(2) the allocation which represents the highest percentage of
compensation (but not over $150,000 or such other amount
required by law) allocated to the Employer Contribution and
401(k) Contribution Accounts of any Key Employee. Allocation
calculations under this Section shall include Employer and
401(k) Contributions and forfeitures to all defined contribution
plans maintained by the Employer.
This minimum allocation shall be made even though, under other
Plan provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for
the Plan Year because of the Participant's failure to complete 1,000
hours of employment (or any equivalent provided in the Plan), the
Participant's failure to make mandatory Employee contributions to the
Plan, if any are required, or the Participant's compensation being
less than a stated amount. No minimum allocation is required,
however, for any Participant who is not an Employee of the Employer
on the last day of the Plan Year.
Compensation, for purposes of this Section, shall mean total
compensation as defined in Section 5.3 but calculated with respect to
the applicable Plan Year.
(c) Top-Heaving Vesting: For any Plan Year in which this Plan is
Top-Heavy, the vesting schedule in Section 6.3 shall not apply and
each Participant shall have a nonforfeitable right in the following
percentage of his Employer Contribution Account:
If the Participant's His/Her Vested
Years of Service are: Percentage Is:
Less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
This Top-Heavy vesting schedule also applies to benefits accrued
before the Plan becomes Top-Heavy and such schedule shall not have
the effect of reducing a Participant's vested benefits as of such
date. This Section does not, however, apply to the Accounts of any
Employee who is not credited with an hour of employment after the
Plan initially becomes Top-Heavy, and his or her vested benefits
shall be determined in accordance with Section 6.3 without regard to
this Section. If, for any Plan Year, the vesting schedule shifts in
or out of the schedule set forth in this Section because the Plan's
Top-Heavy status changes, no reduction in a Participant's vested
benefits shall occur, and the provisions of Section 10.2 shall apply
because such shift is an amendment to the vesting schedule.
Section 13.10-Additions: Amounts allocated to an individual medical
account, as defined in Code Section 415(l)(2), which is part of a pension
or annuity plan maintained by the Employer are treated as Additions to a
defined contribution plan for purposes of Section 2.1(c). Amounts derived
from contributions paid or accrued, which are attributable to post-retire-
ment medical benefits allocated to the separate account of a Key Employee,
as defined in Code Section 419A(d)(3), under a welfare benefit fund, as
defined in Code Section 419(e), maintained by the Employer, shall also be
treated as Additions. The provisions of this Section currently have no
applicability to this Plan, but nonetheless are included herein to comply
with Code qualification requirements.
Section 13.11-Highly Compensated Employees: For purposes of Section
2.1(v), a highly compensated former employee includes any Employee who
separated from service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during the
determination year, and was a highly compensated active employee for
either the separation year or any determination year ending on or after
the Employee's 55th birthday. The provisions of this Section currently
have no applicability to this Plan, but nonetheless are included herein to
comply with Code qualification requirements.
Section 13.12-Disability Plan: If the termination of employment
triggering payment under Section 6.1 was caused by a Disability involving
the loss of use of a member or function of the Participant's body or
permanent disfigurement, then notwithstanding Section 6.1, the payment of
benefits must commence within 90 days after the Valuation Date following
the Committee's determination of the existence of such a Disability unless
the Participant elects to delay payment. It is intended that the separate
distribution provision of this Section and this Plan serve as an accident
and health plan paying benefits exempt from income taxes pursuant to
Section 105(c) of the Code, in addition to its function as a qualified
employee benefit plan under Section 401(a) of the Code, to the greatest
extent legally permissible.
IN WITNESS WHEREOF, the parties hereto have caused this Plan to be
executed in their respective names as of the 12th day of March, 1996.
BADGER PAPER MILLS, INC.
By:/s/E.A. Meyer, Jr.
E.A. Meyer, Jr., Chairman
PLAS-TECHS, INC.
By:/s/E.A. Meyer, Jr.
E.A. Meyer, Jr., Chairman of MBK RIVERVIEW
CORP., which is the sole shareholder of
PLAS-TECHS, INC.
TRUSTEE: NORWEST BANK MINNESOTA, N.A.
By:/s/Karen J. Sesbeau
Karen J. Sesbeau
Title: Assistant Vice President
AMENDMENT NO. 1 TO THE BADGER PAPER MILLS, INC.
PROFIT SHARING PLAN AND TRUST FOR NON-UNION EMPLOYEES
This Amendment, executed at Peshtigo, Wisconsin, is by and between Badger
Paper Mills, Inc. ("Principal Employer"), Plas-Techs, Inc., and Norwest
Bank Minnesota, N.A. ("Trustee"), the Trustee of the Badger Paper Mills,
Inc. Profit Sharing Plan and Trust for Non-Union Employees ("Plan"):
WHEREAS, the Principal Employer and Plas-Techs, Inc. (collectively the
"Employer") and the Trustee are parties to the Plan which was most
recently restated effective July 1, 1994;
WHEREAS, the Employer now adopts Amendment No. 1 to the restated Plan,
which amendment is stated below; and
WHEREAS, the Trustee approves of said amendment to the restated Plan;
NOW, THEREFORE, the Employer and the Trustee adopt the following
amendment, effective as of November 6, 1995, as follows:
FIRST: Section 3.1 is amended by restating the last sentence of the
penultimate paragraph to read as follows:
To implement the foregoing, the Principal Employer will instruct
the Trustee to effectuate a direct trustee-to-trustee transfer
of the Participant's benefits in accordance with Section 6.7 and
the Principal Employer shall establish other uniformly applied
procedures it deems appropriate to administer this Plan to
coordinate the Participant's change in status from union to non-
union or from non-union to union.
SECOND: Chapter 6 is amended by adding a new Section 6.7 to read as
follows:
Section 6.7 - Trustee-to-Trustee Transfer: This Section
6.7 shall apply to each Employee or former Employee whose
employment status with the Employer changes or changed from
union to non-union or from non-union to union ("change in
status").
(a) If an Employee who is a Participant hereunder ceases to
remain eligible to receive allocations of contributions and
Forfeitures pursuant to Section 3.1 on account of a change in
status and becomes a participant in the Badger Paper Mills, Inc.
Profit Sharing Plan and Trust for Union Employees ("Union
Plan"), or if the provisions of Subsection 6.7(c)(i) below
apply, then the Trustee of this Plan shall transfer to the
trustee of the Union Plan all of the benefits hereunder credited
to the Account(s) of such Participant (whether or not the
Participant is fully vested in such Account(s)). Upon the date
of such transfer, the Participant shall no longer be a
Participant under this Plan (until such time, if ever, that the
Employee again becomes a Participant on account of subsequent
allocations to his/her Account(s)). The Trustee shall
effectuate the transfer upon the direction of the Principal
Employer, and the transfer shall occur as soon as
administratively practicable after such direction is given,
giving due regard to administrative concerns, such as Plan
valuation and allocations. All optional forms of benefit and
other protected benefits under Code Section 411(d)(6) with
respect to the transferred benefits, and also the applicable
distribution limitations of Code Section 401(k)(2)(B) with
respect to the transferred benefits, shall be preserved under
the Union Plan.
(b) If an Employee becomes a Participant eligible to receive
allocations of contributions and Forfeitures who was a
participant in the Union Plan and who has benefits credited to
his/her account(s) under the Union Plan, or if the provisions of
Subsection 6.7(c)(ii) below apply, then the Trustee shall accept
from the trustee of the Union Plan the transfer of benefits
credited to the account(s) of such participant under the Union
Plan. The transferred account(s) maintained for the participant
under the Union Plan will retain their character under this Plan
and shall be credited to identical Account(s) under this Plan
(e.g., if a participant has amounts credited to his/her 401(k)
contribution account under the Union Plan, then such amounts
will be credited to the Participant's existing 401(k)
Contribution Account under this Plan or to a new 401(k)
Contribution Account if the Participant does not at the time of
the transfer have benefits credited to such Account), and all
optional forms of benefits and other protected benefits under
Code Section 411(d)(6) under the Union Plan with respect to the
transferred benefits, and also the applicable distribution
limitations of Code Section 401(k)(2)(B), shall be preserved
under this Plan.
(c) If a Participant no longer is an Employee of the Employer
but has benefits credited to his/her Account(s) under this Plan
and also has benefits credited to his/her account(s) under the
Union Plan, then the provisions of this Subsection 6.7(c) shall
apply.
(i) If the Union Plan is the qualified plan
maintained by the Employer in which the Participant
most recently received allocations of contributions
and/or Forfeitures, then the provisions of Subsection
6.7(a) above shall apply.
(ii) If this Plan is the qualified plan maintained by
the Employer in which the Participant most recently
received allocations of contributions and/or
Forfeitures, then the provisions of Subsection 6.7(b)
above shall apply.
(iii) The provisions of this Subsection 6.7(c) shall
equally apply to any Beneficiary of a Participant who
satisfies the requirements of this Subsection.
(d) A transfer pursuant to this Section 6.7 shall not
accelerate or otherwise change the Participant's or
Beneficiary's vested percentage with respect to any of the
Participant's benefits in this Plan or the Union Plan.
(e) With respect to Participants or Beneficiaries who have
amounts credited to their Account(s) as of the date of this
Amendment, any transfer required under this Section 6.7 shall
occur as of November 30, 1995.
IN ALL OTHER RESPECTS, the Plan is hereby ratified and approved.
IN WITNESS WHEREOF, the Employer and the Trustee have caused this
Amendment to be signed by their duly authorized officers on the 13th
day of November, 1995.
BADGER PAPER MILLS, INC.
By: /s/ Edwin A. Meyer, Jr.
Edwin A. Meyer, Jr.
Chairman of the Board & CEO
and also on behalf of Plas-Techs, Inc.
TRUSTEE: Norwest Bank Minnesota, N.A.
By: /s/
Title: _______________________________
FORM OF AMENDMENT NO. 2 TO THE BADGER PAPER MILLS, INC.
PROFIT SHARING PLAN AND TRUST FOR NON-UNION EMPLOYEES ("PLAN")
This amendment, executed at Peshtigo, Wisconsin, is by and between
Badger Paper Mills, Inc. and Plas-Techs, Inc., each a Wisconsin
corporation (collectively the "Employer") and Norwest Bank Minnesota,
N.A., the Trustee of the Badger Paper Mills, Inc. Profit Sharing Plan and
Trust for Non-Union Employees ("Trustee"):
WHEREAS, the Employer and the Trustee are parties to the Plan which
was most recently amended and restated effective July 1, 1994, and which
was subsequently amended by Amendment No. 1 to said restated Plan;
WHEREAS, the Employer and Trustee now adopt an additional amendment
to the restated Plan, which amendment is stated below;
NOW, THEREFORE, the Plan is amended, effective April 1, 1996, as
follows:
FIRST: Section 4.1 is amended by adding the following new sentence
to the end of the last paragraph therein, to read as follows:
All contributions to the Plan shall be in cash or in common
stock of the Principal Employer as determined by the Principal
Employer in its discretion and in compliance with the Code and
ERISA.
SECOND: Section 8.1 is amended by restating its second paragraph to
read as follows:
The Committee and the Principal Employer shall be the named
fiduciary, and the Principal Employer shall be the plan
administrator, as those terms are defined by ERISA, and jointly
they shall have the sole responsibility for the administration
of the Plan and for disclosing to the Participants any
information required by law.
THIRD: Section 9.1(a) is amended by adding the following new
provision at the end thereof, to read as follows:
without limitation of the foregoing, the Trust Fund may be
invested in "qualifying employer securities" (within the meaning
of ERISA) of Badger Paper Mills, Inc., notwithstanding that the
aggregate fair market value of such securities may exceed ten
percent (10%) of the fair market value of the Trust Fund;
FOURTH: Section 9.7 is amended in its entirety to read as follows:
Section 9.7-Investment Instructions: A Participant shall
have the right to specify the manner in which the Trustee shall
invest his or her Accounts, choosing from among the investment
funds made available by the Committee from time to time. The
portion of Accounts to be invested in each such fund and the
timing of each investment shall be made in accordance with the
designation of each Participant pursuant to procedures adopted
by the Committee and as set forth in this Section. If a
Participant does not designate how part or all of his or her
Accounts are to be invested, they shall be invested according to
the most recent designation furnished to the Trustee, or, if no
designation has been executed, they shall be invested in the
investment fund which is identified by the Committee to the
Trustee. Upon the distribution of benefits pursuant to the Plan
(notably Chapter 6), all distributions shall be in cash.
Accordingly, the distribution of securities shall not be allowed
and securities shall be liquidated by the Trustee to the extent
necessary to fund the cash payment of benefits.
In accordance with procedures established by the Committee and
with the concurrence of the Trustee, the Trustee is authorized to
accept and carry out directions from Participants, via telephone
communication or otherwise and without obtaining prior confirmation
or authorization from the Committee, as to the investment funds in
which subsequent Contributions and current Account balances, in whole
or in part, are to be invested. Any other provisions of this Plan
notwithstanding, neither any Employer, the Committee, the Trustee nor
any other person who is otherwise a fiduciary with respect to the
Plan shall incur any liability to anyone for any loss or expense
sustained by any Participant's Account because of any asset acquired,
retained or disposed of by the Trustee or any other actions taken by
the Trustee in accordance with the investment directions given by a
Participant pursuant to the Plan.
In addition to any other funds made available by the Committee
for the investment of Accounts, a "Badger Stock Fund" comprised of
qualifying employer securities as described in Section 9.1(a)
(sometimes referred to as "Badger Stock") shall be available for
investment. Any dividends on Badger Stock, to the extent such
dividend payments are sufficient, shall be reinvested to purchase
additional shares of Badger Stock. If one or more Participants
direct the Trustee to invest his or her Accounts in the Badger Stock
Fund and sufficient shares are not available for purchase at the time
directed by the Participant(s) for the Trustee to fully follow each
Participant's election, then the Trustee shall purchase the Badger
Stock that is available at such time, if any, and shall allocate such
stock to each Participant's Account by multiplying the Badger Stock
which is purchased at such time by a fraction calculated for each
Participant, the numerator of which is the value of Badger Stock
designated for purchase at such time by the Participant and the
denominator of which is the value of all Badger Stock designated for
purchase at such time by all Participants. The Trustee shall
continue to purchase Badger Stock and allocate such shares among the
Participants' Accounts in accordance with the preceding sentence
until such time that the Trustee has fulfilled each Participant's
investment election.
Each Participant who has elected to invest in the Badger Stock
Fund shall receive the same proxy voting materials, information
statements, periodic reports, tender offer materials and other
communications directed to the shareholders of the Principal Employer
(or, in some cases, such as third party tender offers, by others) to
the same extent as other holders of Badger Stock. In general, in the
case of a proxy solicitation by management of the Employer, a
Participant shall receive a proxy card or voting instructions along
with a return envelope addressed to the Trustee to direct the Trustee
how to vote the Participant's shares. The Employer will furnish all
such materials directly to the Trustee, who will in turn furnish the
materials to the Participants. If one or more Participants who has
the opportunity to vote or tender the shares allocated to his or her
Accounts does not instruct the Trustee as to his or her vote or
tender, then to the extent in compliance with ERISA the Trustee shall
vote or tender such shares for which no instructions are received in
the same proportions that are represented in the total shares for
which the Trustee receives instructions from Participants.
For purposes of this Section, the term "Participant" means any
Participant, Former Participant, Beneficiary or Alternate Payee under
the Plan.
IN ALL OTHER RESPECTS, the Plan is hereby ratified and approved.
IN WITNESS WHEREOF, the Principal Employer (also on behalf of Plas-
Techs, Inc.) and the Trustee have caused this Amendment to be signed by
their duly authorized officers this __________ day of
______________________, 1996.
BADGER PAPER MILLS, INC.
By: ___________________________________
Edwin A. Meyer, Jr.
Chairman of the Board & CEO
TRUSTEE: Norwest Bank Minnesota, N.A.
By: _____________________________________
Title: _______________________________
FOLEY & LARDNER
A T T O R N E Y S A T L A W
FIRSTAR CENTER
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202-5367
A MEMBER OF GLOBALEX
WITH MEMBER OFFICES IN
MADISON BERLIN
CHICAGO TELEPHONE (414) 271-2400 BRUSSELS
WASHINGTON, D.C. DRESDEN
JACKSONVILLE TELEX 26-819 FRANKFURT
ORLANDO LONDON
TALLAHASSEE (FOLEY LARD MIL) PARIS
TAMPA SINGAPORE
WEST PALM BEACH FACSIMILE (414) 297-4900 STUTTGART
TAIPEI
WRITER'S DIRECT LINE
March 12, 1996
Badger Paper Mills, Inc.
200 West Front Street
P. O. Box 149
Peshtigo, Wisconsin 54157-0149
Ladies and Gentlemen:
We have acted as counsel for Badger Paper Mills, Inc., a
Wisconsin corporation (the "Company"), in conjunction with the preparation
of a Form S-8 Registration Statement (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
100,000 shares of the Company's common stock, no par value (the "Common
Stock"), which may be issued pursuant to the Badger Paper Mills, Inc.
Profit Sharing Plan and Trust for Non-Union Employees (the "Plan").
We have examined: (i) the Plan; (ii) the Registration
Statement; (iii) the Company's Articles of Incorporation and Bylaws, as
amended to date; (iv) resolutions of the Company's Board of Directors
relating to the Plan; and (v) such other documents and records as we have
deemed necessary to enable us to render this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. Shares of Common Stock may be acquired by the Plan directly
from the Company. To the extent that the shares of Common Stock are
acquired by the Plan directly from the Company, such shares of Common
Stock, when issued in the manner set forth in the Plan, will be validly
issued, fully paid and nonassessable and no personal liability will attach
to the ownership thereof, except with respect to wage claims of employees
of the Company for services performed not to exceed six (6) months service
in any one case, as provided in Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law (and judicial interpretations thereof).
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
said Act.
Very truly yours,
FOLEY & LARDNER
Consent of Independent Accountants
We consent to the incorporation by reference in this registration
statement on Form S-8 of our reports dated January 31, 1995, except as to
the information in the third paragraph of Note E, for which the date is
February 17, 1995, on our audits of the consolidated financial statements
and financial statement schedule of Badger Paper Mills, Inc. as of
December 31, 1994 and 1993, and for the years ended December 31, 1994,
1993 and 1992.
COOPERS & LYBRAND L.L.P.
Milwaukee, Wisconsin
March 12, 1996
