Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
Banta Corporation
(Exact name of registrant as specified in its charter)
Wisconsin 39-0148550
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
225 Main Street
Menasha, Wisconsin 54952
(Address of principal executive offices) (Zip Code)
Banta Hourly 401(k) Plan
(Full title of the plan)
Ronald D. Kneezel Copy to:
Vice President, General Counsel
and Secretary Jay O. Rothman
Banta Corporation Foley & Lardner
225 Main Street 777 East Wisconsin Avenue
Menasha, Wisconsin 54952 Milwaukee, Wisconsin 53202
(414) 751-7777
(Name, address and telephone 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, 200,000 $43.00(1) $8,600,000(1) $2,966
$.10 par value shares
Common Stock 200,000 (2) (2) (2)
Purchase Rights rights
(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 high and low prices for Banta
Corporation Common Stock as reported on The Nasdaq Stock Market
on February 23, 1996.
(2) The value attributable to the Common Stock Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
_________________________________
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 Banta Corporation (the "Company")
or the Banta Hourly 401(k) Plan (the "Plan") with the Commission are
hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994, which includes certified financial statements as of and
for the year ended December 31, 1994.
2. All other reports filed by the Company 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
Item 1 of the Company's Registration Statement on Form 8-A, dated
April 13, 1972, as amended by the Company's filings on Form 8, dated
July 31, 1972 and August 4, 1986, and Form 8A/A, dated November 10, 1994,
and any other amendment or report filed for the purpose of updating such
description.
4. The description of the Company's Common Stock Purchase Rights
contained in Item 1 of the Company's Registration Statement on Form 8-A,
dated November 5, 1991, and 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 filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities being offered hereby will be passed
on for the Company by Foley & Lardner, Milwaukee, Wisconsin. Bernard S.
Kubale, a partner in the firm of Foley & Lardner, is a director of the
Company. As of February 21, 1996, Foley & Lardner attorneys who
participated in the preparation of this Registration Statement, including
Mr. Kubale, beneficially owned 11,138 shares of the Company's Common Stock
and accompanying Common Stock Purchase Rights.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, 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 defense thereof, unless 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 or 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 be noted that the
Wisconsin Business Corporation Law specifically states that it is the
public 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 as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The indemnification provided by the Wisconsin Business Corporation
Law and the Company's By-laws is not exclusive of any other rights to
which a director or officer may be entitled.
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 following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit
No. Exhibit
(4.1) Banta Hourly 401(k) Plan
(4.2) Banta Hourly 401(k) Plan Trust
(4.3) Restated Articles of Incorporation, as amended, of
Banta Corporation (incorporated by reference to
Exhibit 19(b) to Banta Corporation's Quarterly
Report on Form 10-Q for the quarter ended April 3,
1993)
(4.4) Rights Agreement, dated as of October 29, 1991,
between Banta Corporation and Firstar Trust Company
(f/k/a First Wisconsin Trust Company) (incorporated
by reference to Exhibit 4.1 to Banta Corporation's
Current Report on Form 8-K, dated as of October 29,
1991)
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen LLP
(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)
The undersigned Registrant hereby undertakes to submit the Plan to
the Internal Revenue Service ("IRS") in a timely manner and will make all
changes required by the IRS in order to qualify the Plan under Section 401
of the Internal Revenue Code of 1986, as amended.
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, each such post-effective amendment
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.
(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 Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
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
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Menasha, and
State of Wisconsin, on this 27th day of February, 1996.
BANTA CORPORATION
By: /s/ Donald D. Belcher
Donald D. Belcher
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the date indicated. Each person whose signature
appears below constitutes and appoints Donald D. Belcher and Ronald D.
Kneezel, and each of them individually, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
revocation, for him or her and in his or her 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 Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, may lawfully do or cause
to be done by virtue hereof.
Signature Title Date
/s/ Donald D. Belcher Chairman of the Board, February 27, 1996
Donald D. Belcher President, Chief
Executive Officer and
Director
/s/ Gerald A. Hensler Executive Vice February 27, 1996
Gerald A. Henseler President, Chief
Financial Officer and
Director
/s/ Robert A. Kreider Treasurer February 27, 1996
Robert A. Kreider
/s/ Jameson A. Baxter Director February 27, 1996
Jameson A. Baxter
/s/ George T. Brophy Director February 27, 1996
George T. Brophy
Director
William J. Cadogan
/s/ Richard L. Gunderson Director February 27, 1996
Richard L. Gunderson
/s/ Bernard S. Kubale Director February 27, 1996
Bernard S. Kubale
Director
Donald Taylor
/s/ Allan J. Williamson Director February 27, 1996
Allan J. Williamson
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act
of 1933, Banta Corporation, in its capacity as the Plan Administrator of
the Banta Hourly 401(k) Plan, has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Menasha, and State of Wisconsin, on this 27th day of
February, 1996.
BANTA CORPORATION,
as Plan Administrator of the
Banta Hourly 401(k) Plan
By: /s/ Ronald D. Kneezel
Ronald D. Kneezel
Vice President, General Counsel
and Secretary
<PAGE>
EXHIBIT INDEX
BANTA HOURLY 401(k) PLAN
Exhibit No. Exhibit
(4.1) Banta Hourly 401(k) Plan
(4.2) Banta Hourly 401(k) Plan Trust
(4.3) Restated Articles of Incorporation, as
amended, of Banta Corporation (incorporated
by reference to Exhibit 19(b) to Banta
Corporation's Quarterly Report on Form 10-Q
for the quarter ended April 3, 1993)
(4.4) Rights Agreement, dated as of October 29,
1991, between Banta Corporation and
Firstar Trust Company (f/k/a First
Wisconsin Trust Company) (incorporated by
reference to Exhibit 4.1 to Banta
Corporation's Current Report on Form 8-K,
dated as of October 29, 1991)
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen LLP
(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)
EXHIBIT 4.1
BANTA HOURLY 401(k) PLAN
(As Consolidated April 1, 1996)
BANTA HOURLY 401(k) PLAN
Table of Contents
Page
ARTICLE I. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. DEFINITIONS AND CONSTRUCTION . . . . . . . . . . . . . . 2
Section 2.01. Definitions . . . . . . . . . . . . . . . . . . . 2
Section 2.02. Construction . . . . . . . . . . . . . . . . . . 4
ARTICLE III. PARTICIPATION . . . . . . . . . . . . . . . . . . . . . 5
Section 3.01. Participation . . . . . . . . . . . . . . . . . . 5
Section 3.02. Transfer of Employment . . . . . . . . . . . . . 5
ARTICLE IV. CONTRIBUTIONS TO THE TRUST FUND . . . . . . . . . . . . 6
Section 4.01. Election to Make Pre-Tax Savings Contributions . 6
Section 4.02. Amount and Payment of Participant Pre-Tax Savings
Contributions . . . . . . . . . . . . . . . . . . 6
Section 4.03. Employer Matching Contributions . . . . . . . . . 7
Section 4.04. No Liability for Future Employer Contributions . 8
Section 4.05. Time Period for Payment of Employer
Contributions . . . . . . . . . . . . . . . . . . 8
Section 4.06. Rollovers . . . . . . . . . . . . . . . . . . . . 8
ARTICLE V. INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.01. Investment Funds . . . . . . . . . . . . . . . . 9
Section 5.02. Direction of Investment . . . . . . . . . . . . . 9
Section 5.03. Funding Policy . . . . . . . . . . . . . . . . . 10
ARTICLE VI. PARTICIPANT ACCOUNTS . . . . . . . . . . . . . . . . . . 11
Section 6.01. Participant Accounts . . . . . . . . . . . . . . 11
Section 6.02. Allocation of Participant Pre-Tax Savings
Contributions . . . . . . . . . . . . . . . . . . 11
Section 6.03. Allocation of Employer Matching Contributions . . 11
Section 6.04. Allocation of Changes in Value . . . . . . . . . 11
Section 6.05. Maximum Allocation Limitations . . . . . . . . . 11
ARTICLE VII. BENEFITS . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.01. Eligibility for Benefits . . . . . . . . . . . . 13
Section 7.02. Death . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.03. Form and Time of Payment . . . . . . . . . . . . 13
Section 7.04. Payments to Minor or Incompetent Person . . . . . 14
Section 7.05. Hardship Withdrawals . . . . . . . . . . . . . . 14
Section 7.06. Withdrawals After Age 59-1/2. . . . . . . . . . . 15
Section 7.07. Loans . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.08. Direct Rollovers of Eligible Rollover
Distributions . . . . . . . . . . . . . . . . . . 17
Section 7.09. Erroneous Overpayments . . . . . . . . . . . . . 17
ARTICLE VIII. ADMINISTRATION . . . . . . . . . . . . . . . . . . . . 18
Section 8.01. Responsibility and Authority of the Company . . . 18
Section 8.02. Use of Professional Services . . . . . . . . . . 18
Section 8.03. Fees and Expenses . . . . . . . . . . . . . . . . 19
Section 8.04. Delegation of Authority and Responsibility . . . 19
Section 8.05. Requirement to Furnish Information and to Use
Company's Forms . . . . . . . . . . . . . . . . . 19
Section 8.06. Claims Procedure . . . . . . . . . . . . . . . . 19
Section 8.07. Agent for Service of Process . . . . . . . . . . 20
Section 8.10. Voting Rights to Company Stock . . . . . . . . . 20
Section 8.11. Tender Offers for Company Stock . . . . . . . . . 20
ARTICLE IX. FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES . . . . . 22
Section 9.01. Fiduciaries . . . . . . . . . . . . . . . . . . . 22
Section 9.02. Allocation of Fiduciary Responsibilities . . . . 22
Section 9.03. General Limitation on Liability . . . . . . . . . 22
Section 9.04. Multiple Fiduciary Capacities . . . . . . . . . . 22
ARTICLE X. AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . 23
Section 10.01. Amendment . . . . . . . . . . . . . . . . . . . . 23
Section 10.02. Termination . . . . . . . . . . . . . . . . . . . 23
ARTICLE XI. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . 24
Section 11.01. Non-Guarantee of Continued Employment or Other
Benefits . . . . . . . . . . . . . . . . . . . . 24
Section 11.02. Mergers, Consolidations and Transfers of Plan
Assets . . . . . . . . . . . . . . . . . . . . . 24
Section 11.03. Spendthrift Clause . . . . . . . . . . . . . . . 24
Section 11.04. Exclusive Benefit . . . . . . . . . . . . . . . . 24
Section 11.05. Full Satisfaction of Claims . . . . . . . . . . . 25
Section 11.06. Indemnification . . . . . . . . . . . . . . . . . 25
Section 11.07. Successors and Assigns . . . . . . . . . . . . . 25
Section 11.08. IRS Approval . . . . . . . . . . . . . . . . . . 25
Section 11.09. Plan Adoption by Controlled Group . . . . . . . . 25
ARTICLE I. PURPOSE
The Company has previously established the Danbury Printing &
Litho, Inc. Savings Plan for GCIU Local 298M, the Banta Company Savings
Plan for GCIU Fox Valley Local 77P, Printing Trades Specialty Union Local
531 of GCIU, and Maintenance Department Employees Union, and the
Northwestern Colorgraphics, Inc. Savings Plan (collectively, "Prior
Plans") to provide eligible employees an opportunity to provide financial
security for themselves and their families through supplemental retirement
savings and investment on a pre-tax basis.
Effective April 1, 1996, the Prior Plans are being merged,
amended and restated in the form of the Plan. Effective July 1, 1996, the
Plan shall be effective for employees of KCS Industries Inc. represented
by Local 577-M of the GCIU.
ARTICLE II. DEFINITIONS AND CONSTRUCTION
Section 2.01. Definitions. Whenever used herein, the following
words and phrases shall have the following meanings, except as required
otherwise by the context:
(a) "Beneficiary" means the person, trust and/or other entity
designated by the Participant in a written instrument. A Participant
shall designate one or more Beneficiaries on the form and in the manner
prescribed by the Company and such designation may be changed or withdrawn
by the Participant at any time. The most recent valid designation on file
with the Company at the time of the Participant's death shall determine
the Participant's Beneficiary. Notwithstanding the foregoing, in the
event the Participant is married at the time of death, the Beneficiary
shall be the Participant's spouse at such time unless such spouse
consented in writing to the designation of an alternative Beneficiary
after notice of the spouse's rights and such consent was witnessed by
either a Plan representative appointed by the Company or a notary public.
In the event no valid designation of a Beneficiary is on file with the
Company at the date of death or if no designated Beneficiary survives, the
Participant's Beneficiary shall be determined in accordance with the
following order of priority: (i) the Participant's spouse as of the date
of death or, if there be none surviving, (ii) the Participant's estate.
(b) "Code" means the Internal Revenue Code of 1986, as
interpreted by applicable regulations and rulings issued pursuant thereto,
all as amended and in effect from time to time.
(c) "Company" means Banta Corporation, a Wisconsin corporation,
or any successor thereto. Action by any corporate officer of the Company
is effective action by the Company.
(d) "Compensation" means the salary or wages paid to a
Participant for services, unreduced by any Pre-Tax Savings Contributions
hereunder, and including overtime, bonuses, commissions and any salary
reduction pursuant to Code Section 125, but excluding severance pay,
fringe benefits, Employer contributions hereunder, expense reimbursements
and any other irregular or extraordinary payments as determined by the
Company in a uniform and nondiscriminatory manner. The maximum annual
compensation taken into account hereunder for any Plan Year shall be
$150,000 (or such other amount permitted pursuant to Code Section
401(a)(17)). For purposes of calculating this maximum for any 5% owner or
highly compensated employee who is in the group of 10 employees paid the
greatest compensation during the year, pursuant to Code Section 414(q)(6),
the compensation of a spouse or a lineal descendant under age 19 at the
end of the Plan Year shall be treated as if paid to the employee.
(e) "Employee" means any person on the Employer's corporate
payroll who, is receiving remuneration for personal services rendered to
an Employer (or who would be receiving such remuneration except for an
authorized leave of absence) and is in a collective bargaining unit
covered by one of the collective bargaining agreements between (i) Banta
Company (a division of Banta Corporation) and GCIU Fox Valley Local 77P,
Printing Trades Specialty Union Local 531 of GCIU, and Maintenance
Department Employees Union; (ii) Northwestern Colorgraphics (a division of
Banta Corporation) and GCIU Fox Valley Local 77P; (iii) Danbury Printing &
Litho, Inc. and GCIU Local 298M; and (iv) effective July 1, 1996 KCS
Industries Inc. and Local 577-M of the GCIU. A person who is a "leased
employee" within the meaning of Code Section 414(n) shall not be eligible
to participate in the Plan.
(f) "Employer" means the Company and each member of a
controlled group of corporations, a group of trades or businesses under
common control or an affiliated service group, as defined in Code Sections
414(b), (c) and (m), that includes the Company and which adopts the Plan
with the Company's consent.
(g) "Entry Date" means each January 1, April 1, July 1 and
October 1.
(h) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.
(i) "Investment Fund" means an unsegregated fund established
within the Trust and invested in securities, insurance contracts or other
property of such type and characteristics as determined under the
provisions of the Plan and Trust. The term shall include one or more
funds, and such other funds as may be established from time to time.
(j) "Investment Manager" means the Company or a person,
insurance company, corporation or association which qualifies as an
"investment manager" as defined in Section 3(38) of ERISA, including the
Trustee, appointed pursuant to the Trust to direct the investment of all
or any portion of the assets held by the Trustee under this Plan.
(k) "Participant" means (i) any Employee who elects to make
contributions hereunder pursuant to Section 4.01 or 4.06 and (ii) any
former Employee whose account has not been fully distributed pursuant to
the terms of the Plan.
(l) "Plan" means the profit sharing retirement plan herein
contained, as amended and in effect from time to time, which shall be
known as the "Banta Hourly 401(k) Plan".
(m) "Plan Year" means the 12-month period commencing on January
1 and ending on December 31.
(n) "Pre-Tax Savings Contributions" means amounts contributed
at the direction of a Participant pursuant to Section 4.01, which amounts
are contributed by an Employer in lieu of payment of an equal amount to
the Participant as cash compensation.
(o) "Total and Permanent Disability" means a physical or mental
condition which totally and presumably permanently prevents a Participant
from engaging in any substantial gainful activity, as determined by the
Company based on a medical examination by a doctor or clinic appointed by
the Company.
(p) "Trust" means the trust established pursuant to an
agreement entered into between the Company and the Trustee, and known as
the Banta Hourly 401(k) Plan Trust, as amended and in effect from time to
time.
(q) "Trust Fund" means all sums of money and other property,
together with all earnings, income and other increment thereon, held in
trust for purposes of providing benefits and defraying the reasonable
expenses of the Plan, pursuant to the terms of the Trust.
(r) "Trustee" means First Trust National Association or any
successor thereto, as the trustee of the Trust.
(s) "Valuation Date" means each business day.
Section 2.02. Construction. (a) Whenever any words are used
herein in the masculine, they shall be construed as though they were used
in the feminine in all cases where they would so apply; and wherever any
words are used in the singular or the plural, they shall be construed as
though they were used in the plural or the singular, as the case may be,
in all cases where they would so apply. The words "hereof," "herein,"
"hereunder" and other similar compounds of the word "here" shall mean and
refer to this entire Plan and not to any particular article or section.
Titles of articles and sections hereof are for general information only,
and this Plan is not to be construed by reference thereto.
(b) The Plan is intended to qualify as a profit sharing plan
under Section 401(a) of the Code and to include a qualified cash or
deferred arrangement described in Section 401(k) of the Code, and shall be
interpreted so as to comply with the applicable requirements thereof,
where such requirements are not clearly contrary to its express terms.
The Plan shall be construed and its validity determined according to the
laws of the State of Wisconsin to the extent such laws are not preempted
by federal law. In case any provision of the Plan shall be held illegal
or invalid for any reason, said illegality or invalidity shall not affect
the remaining parts of the Plan, but the Plan shall be construed and
enforced as if said illegal and invalid provisions had never been inserted
therein.
ARTICLE III. PARTICIPATION
Section 3.01. Participation. Any Employee shall be eligible to
become a Participant herein on the first Entry Date coincidental with or
next following his completion of 15 days of service and attainment of age
18. In order to become a Participant, an eligible Employee must make an
election in the manner determined by the Company to make Pre-Tax Savings
Contributions or to make a rollover contribution pursuant to Section 4.06.
Following a termination of employment, a rehired former Participant shall
again be eligible to participate in the Plan as of his date of rehire as
an Employee.
Section 3.02. Transfer of Employment. (a) Transfers of
employment between Employers shall not interrupt an Employee's
participation in the Plan.
(b) In the event an individual employed by an Employer in a
status other than an Employee transfers into the status of an Employee,
such Employee shall be eligible to become a Participant as of the date of
the transfer if the minimum service and age requirements in Section 3.01
are then satisfied.
(c) In the event a Participant transfers his employment with
the Employers to a status other than an Employee, his election to make
Pre-Tax Savings Contributions shall be suspended. However, during the
period of such other employment, his account shall continue to share in
the allocations made pursuant to Section 6.04 and he shall retain the
right to benefits accrued prior to such transfer as described in Article
VII.
ARTICLE IV. CONTRIBUTIONS TO THE TRUST FUND
Section 4.01. Election to Make Pre-Tax Savings Contributions.
Each Employee who is eligible to participate in the Plan may elect in the
manner determined by the Company for his Employer to make Pre-Tax Savings
Contributions under the Plan. Subject to the provisions of Section 3.01,
if an Employee makes an election under this Section, the election shall
take effect on the first Entry Date after it is timely filed. The
election shall be made at such time and in such manner as the Company
prescribes. An election under this Section shall remain in effect until
changed or suspended pursuant to Section 4.02.
Section 4.02. Amount and Payment of Participant Pre-Tax Savings
Contributions. (a) Amount: An Employee who elects to participate shall
designate the rate of his Pre-Tax Savings Contributions, based on a
percentage of his Compensation. The Employee may designate any whole
percentage from 1% to 15% as the rate of his Pre-Tax Savings
Contributions.
(b) Change in Rate: A Participant may suspend Pre-Tax Savings
Contributions effective as soon as practicable. Otherwise, the rate of a
Participant's Pre-Tax Savings Contributions shall remain in effect from
time to time and may be changed by election in the manner and by the time
determined by the Company effective with the payroll period which ends on
or after the first day of the month following the timely election.
(c) Payment: Pre-Tax Savings Contributions shall be made by
the Participant's Employer through regular payroll deduction in lieu of
payment as Compensation to the Participant. Pre-Tax Savings Contributions
so received by the Employer shall be remitted to the Trustee as soon as
practicable after each payroll period and credited to the accounts of the
Participants from whom they were withheld pursuant to Section 6.02.
(d) No Participant shall contribute Pre-Tax Savings
Contributions in excess of $9,500 in any calendar year (or such higher
amount as may be permitted pursuant to Code Section 402(g)) less the
amount of any elective deferrals under all other plans, contracts or
arrangements maintained by the Employers. In addition, the Plan is
subject to the limitations of Code Section 401(k), which are incorporated
herein by this reference. Accordingly, the actual deferral percentage for
eligible highly compensated employees (as defined in Code Section 414(q))
shall not exceed the greater of:
(i) the actual deferral percentage of eligible
nonhighly compensated employees multiplied by
1.25, or
(ii) the lesser of (A) the actual deferral
percentage of the eligible nonhighly
compensated employees plus two percentage
points, or (B) the actual deferral percentage
of the eligible nonhighly compensated employees
multiplied by 2.0, subject to such other
applicable limit as may be prescribed by the
Secretary of the Treasury to prevent the
multiple use of this alternative limitation.
In order to ensure the favorable tax treatment of Pre-Tax Savings
Contributions hereunder pursuant to Code Section 401(k) or to ensure
compliance with Code Section 402(g) or 415, the Company in its discretion
may prospectively decrease the rate of Pre-Tax Savings Contributions of
any Participant at any time and, to the extent permitted by applicable
regulations, may direct the Trustee to refund Pre-Tax Savings
Contributions to any Participant. Any excess contributions, determined
(iii) after application of the family aggregation rules and use of such
qualified nonelective contributions and/or qualified matching
contributions as may be helpful in the actual deferral percentage test,
and (iv) by leveling the highest deferral ratios until the test is
satisfied, and excess deferrals shall be distributed with applicable
income determined pursuant to applicable regulations, together with any
applicable matching contribution. The amount of a required distribution
of excess contributions shall be reduced in whole or in part by a prior
distribution to such Participant of excess deferrals for the applicable
period and vice versa. Such distributions shall be made during the Plan
Year following the year the excess contributions were made, and the amount
shall be determined based on the respective portions attributable to each
highly compensated employee as defined in Code Section 414(q) and based on
compensation as defined in Code Section 414(s).
Section 4.03. Employer Matching Contributions. (a) Subject to
the Company's right to amend or terminate the Plan as herein provided, for
each Participant in a collective bargaining unit covered by one of the
collective bargaining agreements between Banta Company and GCIU Fox Valley
Local 77P, Printing Trades Specialty Union Local 531 of GCIU and
Maintenance Department Employees Union the amount of the Employer matching
contribution on behalf of such Participant for each payroll period shall
be equal to 25% of the Participant's Pre-Tax Savings Contributions of up
to 2% of Compensation. No other Participants shall be eligible for
matching contributions. Such matching contributions shall be remitted to
the Trustee as soon as practicable after each payroll period and credited
to the accounts of Participants pursuant to Section 6.03. Employer
matching contributions shall be made in cash. Effective January 5, 1997,
the amount of the Employer matching contribution on behalf of each Banta
Company Participant who is represented by Printing Trades Specialty Union
Local 531 of GCIU shall be equal to 25% of the Participant's Pre-Tax
Savings Contributions of up to 4% of Compensation for each payroll period.
(b) The Plan is subject to the limitations of Code Section
401(m), which are incorporated herein by this reference. Accordingly, the
actual contribution percentage of matching employer contributions for
eligible highly compensated employees (as defined in Code Section 414(q))
shall not exceed the greater of:
(i) the actual contribution percentage of the
eligible nonhighly compensated employees
multiplied by 1.25, or
(ii) the lesser of (A) the actual contribution
percentage of the eligible nonhighly
compensated employees plus two percentage
points, or (B) the actual contribution
percentage of the eligible nonhighly
compensated employees multiplied by 2.0,
subject to such other applicable limit as may
be prescribed by the Secretary of the Treasury
to prevent the multiple use of this alternative
limitation.
In order to ensure compliance with Code Section 401(m), any excess
aggregate contributions, determined (i) after application of the family
aggregation rules, use of qualified matching contributions in the actual
deferral percentage test and use of such qualified nonelective
contributions and/or qualified matching contributions as may be helpful in
the actual contribution percentage test, and (ii) by leveling the highest
contribution ratios until the test is satisfied, shall be distributed with
applicable income determined pursuant to applicable regulations. Such
distributions shall be made during the Plan Year following the year the
excess aggregate contributions were made, and the amount shall be
determined based on the respective portions attributable to each highly
compensated employee as defined in Code Section 414(q) and based on
compensation as defined in Code Section 414(s).
Section 4.04. No Liability for Future Employer Contributions.
The benefits under the Plan shall be only such as can be provided by the
assets of the Trust Fund, and there shall be no liability or obligation to
make future Employer contributions hereunder or to make any further
contributions in the event of termination of the Plan.
Section 4.05. Time Period for Payment of Employer
Contributions. Each Employer's contributions for any Plan Year shall be
paid to the Trustee not later than the time prescribed by law, including
any extensions thereof, for filing the Company's consolidated federal
income tax return with respect to such year.
Section 4.06. Rollovers. The Company may, in its discretion,
direct the Trustee to accept benefits (in the form of cash or other assets
acceptable to the Company) of any Employee arising out of participation in
a tax-qualified employee pension benefit plan maintained by an Employer or
a former employer of such person as a qualified plan under Code Section
401 or 403, if such benefits are eligible for rollover treatment under
Code Section 402 or 408, or are transferred directly to the plan by the
trustee of such other plan in connection with a merger of plans. However,
in no event shall amounts representing nondeductible employee
contributions be rolled over to this Plan pursuant to this Section. Any
amount so transferred shall be fully vested, shall be given special
designation by the trustee in order to provide for the proper
administration of the Plan, and shall be subject to such rules and
regulations as shall be determined by the Company.
ARTICLE V. INVESTMENTS
Section 5.01. Investment Funds. (a) There may be two or more
funds with varying titles, objectives and investment characteristics
established by the Company. The existence and nature of the Investment
Funds available from time to time shall be communicated to Participants.
Any Investment Fund may be eliminated in the discretion of the Company
after notice to Participants and reallocation of the amounts in such
Investment Fund to remaining Investment Funds. Any or all of the
Investment Funds may be invested in common trust funds of the Trustee or
in mutual funds in the discretion of the Investment Manager and pursuant
to the provisions hereof.
(b) Pending investment in securities of a character described
for the Investment Fund, any part of an Investment Fund may be invested in
savings accounts or other deposits with a bank, commercial paper or other
short-term fixed income securities, including any common or collective
trust funds maintained by the Trustee utilizing similar investments.
Section 5.02. Direction of Investment. (a) Each Participant
shall direct the percentages of Pre-Tax Savings Contributions, rollover
contributions and Employer matching contributions credited to his account
that shall be invested in each Investment Fund, but such percentages must
be in increments of 1% or in such lesser increments as the Company may
prescribe. However, a Participant may not direct that more than 50% of
contributions to his account be invested in the Company Stock Fund. In
the event a Participant fails to direct investment of any part of his
account, such amount shall be invested on the Participant's behalf in the
Fixed Income Fund described in Section 5.01(a) or in such other Investment
Fund as the Company may designate for this purpose.
(b) As of any Valuation Date, a Participant may change his
prior election under this Section and direct (i) that future contributions
credited to his account be allocated among the Investment Funds pursuant
to a modified direction, and/or (ii) that the existing balances in his
account be reallocated among the Investment Funds, provided that, in
either case, such directions shall be in increments of 1% to any
Investment Fund or in such lesser increments as the Company may prescribe.
However, a Participant may not direct that more than 50% of future
contributions or more than 50% of the existing balances in his account be
allocated or reallocated to the Company Stock Fund. Notwithstanding the
foregoing, following an election under (i) or (ii), no subsequent change
for that subparagraph (i) or (ii) shall be made for at least 90 days, and,
in addition, a Participant's ability to reallocate funds into or out of
any Investment Fund may be restricted in accordance with uniformly
applicable rules imposed by the Company due to the nature of the
investments of such Investment Fund.
(c) Elections under this Section shall be made at such time and
in such manner as the Company may prescribe.
(d) Notwithstanding the foregoing, if it determines that any
election with respect to a contribution into or reallocation of funds into
or out of the Company Stock Fund or any distribution from the Company
Stock Fund might violate applicable securities laws or is for any other
reason impracticable or contrary to the best interests of one or more
Participants (including Participants subject to Section 16 of the
Securities Exchange Act of 1934, as amended), the Company may, in its sole
discretion, suspend or limit the right of any Participant to make or
change an investment election under this Section and/or defer the
execution of any such election or any distribution.
Section 5.03. Funding Policy. The funding policy for the Plan
is that the Trust Fund shall be managed in a manner consistent with ERISA
and the general investment objectives for the Investment Funds and for the
purpose of defraying the reasonable expenses of administering the Plan.
The Company shall have primary responsibility for carrying out the funding
policy, and in addition to its specific responsibilities set forth
elsewhere in the Plan, shall establish and communicate to the Trustee
and/or other Investment Manager the general investment policy and
objectives for the funds established pursuant to Section 5.02.
ARTICLE VI. PARTICIPANT ACCOUNTS
Section 6.01. Participant Accounts. The Trustee shall
establish and maintain an account in the name of each Participant for his
allocated share of Employer contributions, Pre-Tax Savings Contributions
and rollovers, if any, and shall maintain separate balances within such
account for the Participant's interests in each Investment Fund and for
such other purposes as the Company may direct. As soon as practicable
following each Plan Year, the Trustee shall prepare for each Participant a
statement reflecting the status of the Participant's account as of the end
of the Plan Year.
Section 6.02. Allocation of Participant Pre-Tax Savings
Contributions. As soon as practicable after they are received, the
Trustee shall allocate each Participant's Pre-Tax Savings Contributions to
the account of such Participant.
Section 6.03. Allocation of Employer Matching Contributions.
As soon as practicable after they are received, the Trustee shall allocate
the Employer matching contributions for each Participant to the account of
such Participant.
Section 6.04. Allocation of Changes in Value. As of each
Valuation Date, the Trustee shall value each Investment Fund and
proportionately adjust the balance of each Participant's or Beneficiary's
account invested in such Fund to reflect the effect of income received,
any change in fair market value (whether realized or unrealized), expenses
and all other transactions since the preceding Valuation Date respecting
such Fund.
Section 6.05. Maximum Allocation Limitations. (a) The Plan is
subject to the limitations on benefits and contributions imposed by Code
Section 415 which are incorporated herein by this reference. The
limitation year shall be the Plan Year. In the event that there are
multiple plans, (i) reductions shall be made under a defined benefit plan
before any reductions under this Plan, and (ii) unless such other plan
prohibits, reductions of contributions under multiple defined contribution
plans shall be made on a prorata basis. If as a result of a reasonable
error in estimating a Participant's compensation or in determining the
amount of elective contributions, or for other reasons acceptable under
applicable regulations, the annual additions to a Participant's account
for any Plan Year exceed the limits imposed by Code Section 415, the
Participant's Pre-Tax Savings Contributions for the Plan Year may be
distributed to the Participant, to the extent such distribution would
reduce the excess annual additions.
(b) Any amounts not allocable to a Participant by reason of the
limitations incorporated herein shall be allocated and reallocated during
the limitation year among all other eligible Participants to the extent
permitted by the limitations. Any amounts which cannot be allocated or
reallocated due to the limitations shall be credited to a suspense account
subject to the following conditions (i) amounts in the suspense account
shall be allocated as a forfeiture among all eligible Participants
hereunder at such time, including termination of the Plan or complete
discontinuance of Employer contributions, as the foregoing limitations
permit, (ii) no investment gains or losses shall be allocated to the
suspense account, (iii) no further Employer contributions shall be
permitted until the foregoing limitations permit their allocation to
Participant's accounts, and (iv) upon termination of the Plan, any
unallocated amounts in the suspense account shall revert to the Employers.
ARTICLE VII. BENEFITS
Section 7.01. Eligibility for Benefits. The full amount
credited to a Participant's account shall be payable to the Participant
(i) upon his termination of employment for reasons other than his death or
(ii) in the event of his Total and Permanent Disability.
Section 7.02. Death. The full amount credited to the account
of a Participant shall be payable to the Participant's Beneficiary upon
the death of the Participant.
Section 7.03. Form and Time of Payment. (a) All amounts
payable to a Participant who terminates employment with the Company or to
a Beneficiary of a deceased Participant shall be paid in the form of a
lump sum distribution at the time described in subsection (b) below. Such
lump sum distribution shall be made in cash unless the Participant or
Beneficiary elects to receive the portion of the account that is invested
in the Company Stock Fund in the form of whole shares of Company Stock
plus cash equal to the value of any factional shares of Company Stock
allocable to his interests in such Fund.
(b) Payment shall be made by the Trustee as soon as practicable
after the Valuation Date which next follows the date on which such
benefits become payable. Notwithstanding the foregoing:
(i) except with respect to death benefits, no
distribution shall be made prior to the
Participant's attainment of age 65 without the
consent of the Participant if the total value
of such Participant's account exceeds, or has
ever exceeded, $3,500;
(ii) unless the Participant otherwise elects,
benefits shall be paid no later than 60 days
after the end of the Plan Year in which the
Participant attains age 65 or actually retires,
if later; and
(iii) benefits shall be paid no later than the April
1 following the year in which the Participant
attains age 70-1/2, even if the Participant is
still employed at such time.
(c) For purposes of any distribution or withdrawal pursuant to
this Article, the value of the Participant's account balances shall be
determined as of the Valuation Date immediately preceding the date of
distribution.
(d) The provisions of the Plan are intended to comply with Code
Section 401(a)(9) which prescribes certain rules regarding minimum
distributions and requires that death benefits be incidental to retirement
benefits. All distributions under the Plan shall be made in conformance
with Section 401(a)(9) and the regulations thereunder which are
incorporated herein by reference. The provisions of the Plan governing
distributions are intended to apply in lieu of any default provisions
prescribed in regulations; provided, however, that Code Section 401(a)(9)
and the regulations thereunder override any Plan provisions inconsistent
with such Code Section and regulations.
Section 7.04. Payments to Minor or Incompetent Person. In the
event that any amount is payable under the Plan to any person who is a
minor or is deemed by the Company to be incompetent, either mentally or
physically, or for any other reason incapable of receiving such payment,
the Company may, in its sole discretion, make such payment for the benefit
of such person in any of the following ways that the Company may select
(i) to such person's legal representative appointed by proceedings
satisfactory to the Company; (ii) directly to such person even though he
is not then able to exercise control over such payment; and/or (iii) to
any custodian under the Uniform Gifts to Minors Act or similar statutes or
guardian of such person or of his property with whom such person is making
his home. The Company shall not be required to see to the proper
application of any such payment made for such person's benefit pursuant to
the provisions of this Section, and any such payment shall satisfy in full
such person's entitlement to that payment.
Section 7.05. Hardship Withdrawals. (a) Upon a showing of an
immediate and heavy financial need that cannot be met from other resources
that are reasonably available to the Participant, a Participant may
withdraw an amount not exceeding the lesser of (i) the amount necessary to
satisfy such need, including any amounts necessary to pay any federal,
state or local income taxes or penalties reasonably anticipated to result
from the withdrawal, or (ii) 100% of the balances in his account,
excluding, however, any earnings credited after January 1, 1989 to the
balance in his account that is attributable to Pre-tax Savings
Contributions, and excluding balances attributable to Employer matching
contributions. For purposes of this Section, an immediate and heavy
financial need shall be deemed to exist if the withdrawal is on account
of:
(iii) unreimbursed expenses for medical care
described in Code Section 213(d) incurred by
the Participant, the Participant's spouse or
any dependents of the Participant (as defined
in Code Section 152) or necessary for any such
person to obtain medical care;
(iv) costs directly related to the purchase of a
principal residence for the Participant
(excluding mortgage payments);
(v) payment of tuition and related educational fees
for the next 12 months of post-secondary
education for the Participant or the
Participant's spouse, children or dependents;
(vi) payments necessary to prevent the eviction of
the Participant from his principal residence or
foreclosure on the mortgage of the
Participant's principal residence; or
(vii) other events provided for in revenue rulings,
notices or other documents of general
applicability published by the Commissioner of
Internal Revenue.
The withdrawal shall be made only after the Participant first takes all
permitted loans and distributions hereunder and pursuant to any other plan
maintained by the Employers.
(b) A Participant requesting a withdrawal under this Section
must demonstrate to the Company's satisfaction that the immediate and
heavy financial need cannot be met from other resources that are
reasonably available to the Participant, including any reasonably
available assets of the Participant's spouse or minor children. In
general, this requirement will be satisfied if the Participant represents
that the need cannot be relieved (i) through reimbursement or compensation
by insurance or otherwise, (ii) by reasonable liquidation of the
Participant's assets, (iii) by cessation of Pre-Tax Savings Contributions
hereunder, or (iv) by distributions or loans from this Plan or any other
plan of the Employers or by borrowing from commercial sources on
reasonable commercial terms.
(c) No more than one withdrawal may be made by a Participant
pursuant to this Section 7.05 during any Plan Year.
(d) Withdrawals shall be made from the Participant's interests
in the various Investment Funds on a prorata basis.
Section 7.06. Withdrawals After Age 59-1/2. After attainment of
age 59-1/2, a Participant may, once during any Plan Year, elect to withdraw
any portion of the balances in his account, excluding, however, all
balances attributable to Employer matching contributions.
Section 7.07. Loans. (a) The Company shall be responsible for
the administration of this loan program. This Section applies only to an
individual who (1)(A) is actively employed by an Employer or (B) is a
party in interest with respect to the Plan, as defined in Section 3(14) of
ERISA and (2) has an account balance in this Plan attributable to (A) his
own participation herein or (B) the participation of a deceased
Participant of whom such individual is a Beneficiary. Such individuals
are referred to in this Section as "Borrower." The limitations in this
Section shall apply in the aggregate to all of the Borrower's account
balances in the Plan.
(b) Upon application in the manner determined by the Company, a
Borrower may elect to borrow from his account balance; provided, however,
that no loan request shall be for less than $1,000 and the aggregate
principal amount of all loans outstanding as of the date a loan is made
shall not exceed the lesser of (i) $50,000, reduced by the highest loan
balance outstanding during the preceding 12-month period, or (ii) the sum
of 50% of the Participant's account balances valued as of the last
Valuation Date immediately preceding his application, minus any
withdrawals following such Valuation Date. No more than one loan shall be
made to a Borrower in any Plan Year, and no Borrower may have more than
one loan outstanding any time. All loans shall bear interest at a rate
commensurate with the rate which would be charged by commercial lenders
for similar loans as determined by the Company in accordance with
Department of Labor Regulation Section 2550.408b-1.
(c) Repayments of all loans shall be by payroll deductions and
shall be made so as to provide substantially level amortization of the
loan over its term; provided, however, that any Borrower may prepay the
outstanding balance of his loan in full at any time. The term of each
loan shall be such period as the Borrower may elect, but in no event shall
exceed five years in duration unless the loan is for the purchase of a
home for the Borrower, in which case the term may be up to 10 years. All
loans shall be due and payable upon the Borrower's termination of
employment. However, following the Participant's termination of
employment, the note evidencing any outstanding loan may be distributed to
the Participant or his beneficiary in full satisfaction of any remaining
indebtedness. Every loan applicant shall receive a clear statement of the
charges involved in each loan transaction, including the dollar amount and
annual interest rate or the finance charge.
(d) Amounts loaned to a Borrower pursuant to subsection (a)
above shall be deducted from the Borrower's account for purposes of the
allocation of Trust Fund earnings under Section 6.04 hereof. Proceeds for
the loan shall be taken from the Investment Fund or Funds specified by the
Borrower. All loans made pursuant to this Section 7.06 shall be
investments for the sole benefit of the Borrower's account. All interest
and principal paid thereon shall be credited to the Borrower's account.
Such payments shall be allocated among the Investment Funds pursuant to
the Borrower's most recent election under Section 5.02 relating to the
investment of contributions.
(e) In the event that the Borrower fails to make two or more
consecutive payments, the loan shall be in default. The Company shall
notify the Borrower in writing of the default. If the Borrower fails to
cure the default by making all necessary payments within 30 days of such
written notice, the Company may direct the Trustee to charge the total
amount of such loan (including accrued interest), or any portion thereof,
against the Borrower's account at such time as will not risk
disqualification of the Plan, and such account shall be reduced by said
amount. All loans shall be secured by the Borrower's segregated loan
account, which shall consist of the Borrower's indebtedness plus accrued
interest.
(f) In the sole discretion of the Company, further limitations
on the number, dollar amount, and repayment of loans hereunder shall be
imposed on a uniform and nondiscriminatory basis, together with any other
rules and regulations deemed appropriate, including the assessment of a
processing fee against the Borrower's account.
Section 7.08. Direct Rollovers of Eligible Rollover
Distributions. (a) Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under this
Section, a distributee may elect, at the time and in the manner prescribed
by the Company, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the distributee
in a direct rollover.
(b) An eligible rollover distribution is any distribution of
all or any portion of the balance to the credit of the distributee, except
that an eligible rollover distribution does not include: any distribution
that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or for a
specified period of ten (10) years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the Code; and the
portion of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(c) An eligible retirement plan is an individual retirement
account described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan described
in Section 403(a) of the Code, or a qualified trust described in Section
401(a) of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover distribution
to the surviving Spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(d) A distributee includes an employee or former employee. In
addition, the employee's or former employee's surviving Spouse and the
employee's or former employee's Spouse or former Spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are distributees with regard to the interest
of the Spouse or former Spouse.
(e) A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
Section 7.09. Erroneous Overpayments. In the event any
payments hereunder to a Participant, former Participant, or Beneficiary
exceed the amounts to which such person was entitled, the Company may
withhold or reduce subsequent payments, or may take such other action as
it deems necessary or appropriate.
ARTICLE VIII. ADMINISTRATION
Section 8.01. Responsibility and Authority of the Company. The
Company shall have and exercise all discretionary and other authority to
control and manage the operation and administration of the Plan as it may
be amended by the Company from time to time, except such authority as is
specifically allocated otherwise by or under the terms hereof. Without
limiting the foregoing and in addition to the authority and duties
specified elsewhere herein, the Company shall have exclusive authority to
(a) interpret and apply all provisions hereof, including
without limitation, the power to determine who is a Participant in the
Plan and the amount of Compensation to be recognized for each such
Participant;
(b) formulate, issue and apply rules and regulations, which are
consistent with the terms and provisions hereof and the requirements of
applicable law, including without limitation, rules relating to the
timeliness of elections under the Plan;
(c) make appropriate determinations and calculations and direct
the Trustee to pay benefits accordingly;
(d) prescribe and require the use of appropriate forms;
(e) prepare all reports which may be required by law;
(f) determine the existence of Total and Permanent Disability
and, in this connection, to require any Participant to submit to a
physical examination by a licensed physician, in accordance with uniform
rules and procedures consistently applied to similarly situated
individuals;
(g) approve or deny all applications under Article VII hereof
and direct the Trustee as to the timing of any distribution;
(h) transmit to the Trustee the investment elections of
Participants pursuant to Article V hereof; and
(i) to determine eligibility for benefits and to construe the
terms of the Plan; any such determination or construction shall be final
and binding on all parties unless arbitrary and capricious.
Section 8.02. Use of Professional Services. The Company may
engage the services of and/or consult with any legal counsel, independent
qualified public accountant or other persons as may be deemed appropriate.
Such persons may be employed for the purpose of rendering advice to the
Company concerning the Company's responsibilities hereunder and may be
persons who render services to the Company and/or the Trustee. In any
case in which such services are utilized, the Company shall retain
exclusive discretionary authority and control over the management and
administration of the Plan.
Section 8.03. Fees and Expenses. Where the Company utilizes
services as provided by Section 8.03 hereof, it shall review and approve
fees and other costs for these services. Such fees and costs and any
other expenses incurred or authorized by the Company shall be paid by the
Employers or from the Trust Fund as determined by the Company and, to the
extent paid from the Trust Fund, shall be charged as determined by the
Company to the Trust Fund as a whole or to an individual Participant's
account, or a particular investment fund.
Section 8.04. Delegation of Authority and Responsibility. (a)
The Company may delegate to any one or more of its employees the authority
to execute documents on behalf of the Company and to represent the Company
in any matters or dealings involving the Company. Any such delegation of
authority shall be set forth in writing.
(b) Employees may perform such duties and functions relating to
the Plan, including handling claims under Section 8.08 hereof, as the
Company shall direct and supervise. It is expressly provided, however,
that in any such case, the Company retains full and exclusive authority
and responsibility for and respecting any such activities by other
employees, and nothing contained in this Section 8.06 shall be construed
to confer upon such other employees any discretionary authority or control
in and respecting the management and administration of the Plan.
Section 8.05. Requirement to Furnish Information and to Use
Company's Forms. Each person entitled to benefits under the Plan shall
furnish to the Company such evidence, dates or information as the Company
considers necessary or desirable in order to properly administer the Plan.
Any designation of Beneficiary, benefit application, notification or other
writing to be submitted hereunder to the Company must be filed pursuant to
the procedure and on the appropriate form prescribed, and its receipt
acknowledged by the Company in order to be valid and effective.
Section 8.06. Claims Procedure. (a) The Company shall
designate one of its employees and/or such other person or persons it
selects to handle claims by Participants and Beneficiaries. A Participant
or Beneficiary who believes that he is then entitled to benefits hereunder
in an amount greater than he is receiving or has received, may file a
claim for such benefits by writing directly to the Company. Every claim
which is properly filed shall be decided and answered in writing within 90
days (or 180 days if additional time is needed and the claimant is so
notified prior to the commencement of the extension) of its receipt by the
Company, stating whether the claim is granted or denied. If the claim is
wholly or partially denied, the specific reasons for denial and reference
to the pertinent Plan provisions shall be set forth in a written notice to
the claimant. Such notice shall also describe any information necessary
for the claimant to perfect an appeal and an explanation of the Plan's
claims appeal procedure as set forth in subsection (b) below.
(b) Within 60 days of notice that a claim is denied, the
claimant may file a written appeal to the Company, including any comments,
statements or documents the claimant may wish to provide. Every appeal
shall be decided and answered within 60 days (or 120 days if additional
time is needed and the claimant is so notified prior to the commencement
of the extension) of its receipt by the Company. In the event the claim
is denied upon appeal, the specific reasons for denial and reference to
the pertinent Plan provisions shall be set forth in a written decision
which shall be sent to the claimant. The Company shall comply with any
reasonable request from a claimant for documents or information relevant
to his claim prior to his filing an appeal.
Section 8.07. Agent for Service of Process. The Company is
designated as the agent for service of legal process with respect to all
matters pertaining to the Plan and the Trust Fund.
Section 8.10. Voting Rights to Company Stock. At the time of
the mailing to stockholders of the notice of any stockholders' meeting of
the Company, the Company, in conjunction with the Trustee, shall use its
reasonable best efforts to cause to be delivered to each Participant with
an interest in the Company Stock Fund such notices and informational
statements as are furnished to the Company's stockholders in respect of
the exercise of voting rights, together with forms by which the
Participant may confidentially instruct the Trustee, or revoke such
instruction, with respect to the voting of shares of Company Stock
allocable to his account. Upon timely receipt of directions, the Trustee
shall vote or not vote shares of Company Stock allocable to a
Participant's Account on each matter as directed by the Participant. The
Trustee shall vote or not vote Company Stock with respect to which the
Participant has not directed (or not timely directed) the Trustee as to
the manner in which such Company Stock is to be voted, in such manner as
the Trustee, in its sole discretion, shall determine. All voting
instructions and directions received by the Trustee from a Participant
shall be held in confidence by the Trustee and shall not be divulged or
released to any person, including directors, officers and employees of the
Employers.
Section 8.11. Tender Offers for Company Stock. Notwithstanding
any other provisions of the Plan, if there is a tender or exchange offer
for, or a request or invitation for tenders of, shares of Company Stock
held by the Trustee, the Company (i) shall furnish to the Trustee, who
shall then furnish to each Participant, prompt notice of any such tender
or exchange offer for such shares of Company Stock and (ii) the Trustee
shall request from each Participant instructions as to the tendering of
shares of Company Stock allocable to the Participant's account. The
Trustee shall tender shares of Company Stock for which the Trustee has
received (within the time specified in the notification) tender
instructions. The Trustee shall not tender shares of Company Stock for
which the Trustee has received instructions from the Participant not to
tender. With respect to shares of Company Stock with respect to which the
Trustee receives no instructions, the Trustee shall tender or not tender
such shares as it, in its sole discretion, may determine. Cash proceeds
from the sale of the Company Stock pursuant to such offer shall be
temporarily invested in the Fixed Income Fund pending further instructions
from the Participant under Section 5.02 or from the Company. All tender
instructions received by the Trustee from a Participant shall be held in
confidence by the Trustee and shall not be divulged or released to any
person, including directors, officers and employees of the Employer or any
person making the offer.
ARTICLE IX. FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES
Section 9.01. Fiduciaries. The Company, any Investment Manager
and the Trustee shall be deemed to be the only fiduciaries, named and
otherwise, of the Plan and Trust Fund for all purposes of ERISA. No named
fiduciary designated in this Section 9.01 shall be required to give any
bond or other security for the faithful performance of its duties and
responsibilities with respect to the Plan and/or Trust Fund, except as may
be required from time to time under ERISA.
Section 9.02. Allocation of Fiduciary Responsibilities. The
fiduciary responsibilities (within the meaning of ERISA) allocated to each
named fiduciary designated in Section 9.01 hereof shall consist of the
responsibilities, duties, authority and discretion of such named fiduciary
which are expressly provided herein and in any related documents. Each
such named fiduciary may obtain the services of such legal, actuarial,
accounting and other assistants as it deems appropriate, any of whom may
be assistants who also render services to any other named fiduciary, the
Plan and/or any Employer; provided, however, that where such services are
obtained, the named fiduciary shall not be deemed to have delegated any of
its fiduciary responsibilities to any such assistant but shall retain full
and complete authority over and responsibility for any activities of such
assistant. The Company, Trustee, any Investment Manager, and any
employees thereof shall not be responsible for any act or failure to act
of any other one of them except as may be otherwise specifically provided
under ERISA.
Section 9.03. General Limitation on Liability. Neither the
Company, the Trustee, any Investment Manager nor any other person or
entity, including any Employer and its respective shareholders, directors
and employees, guarantees the Trust Fund in any manner against loss or
depreciation and none of them shall be jointly or severally liable for any
act or failure to act or for anything whatever in connection with the Plan
and the Trust Fund, or the administration thereof, except and only to the
extent of liability imposed because of a breach of fiduciary
responsibility specifically prohibited under ERISA.
Section 9.04. Multiple Fiduciary Capacities. Any person or
group of persons may serve in more than one fiduciary capacity with
respect to the Plan and/or the Trust Fund.
ARTICLE X. AMENDMENT AND TERMINATION
Section 10.01. Amendment. The Company shall have the right to
amend this Plan at any time and in any manner consistent with the Code and
ERISA. Any amendment may be retroactive to the extent permitted by
applicable law. Notwithstanding the foregoing, no amendment to the Plan
shall decrease a Participant's accrued benefit or vested percentage or
eliminate an optional form of distribution for a previously accrued
benefit.
Section 10.02. Termination. The Company shall have the right to
terminate the Plan, in whole or in part, at any time and in such event, or
upon termination due to permanent discontinuance of all Company
contributions, the account of each Participant shall be fully vested and
nonforfeitable to the extent of the termination. Upon complete
termination of the Plan or discontinuance of contributions hereunder, the
Company may direct that the accounts of all Participants and Beneficiaries
shall be valued and distributed, or may instead direct that the Trust Fund
shall be continued and that distributions shall be made at the time and in
the manner specified in Article VII.
ARTICLE XI. GENERAL PROVISIONS
Section 11.01. Non-Guarantee of Continued Employment or Other
Benefits. Neither the establishment of the Plan, nor any modification or
amendment thereof, nor the payment of any benefit hereunder shall be
construed as giving any Participant or other person whomsoever any legal
or equitable right against any Employer, its respective officers and
employees, any Investment Manager, or any Trustee, or the right to the
payment of any benefits hereunder (unless the same shall be specifically
provided herein) or as giving any Employee the right to continue his
employment with any Employer or as affecting any Employer's right to sever
such employment.
Section 11.02. Mergers, Consolidations and Transfers of Plan
Assets. In the case of any merger, consolidation with, or transfer of
assets or liabilities to any other plan, each Participant must be entitled
to receive a benefit immediately after the merger, consolidation, or
transfer (if the applicable plan were then to terminate) which is equal to
or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation, or transfer (if the
applicable plan were then to terminate).
Section 11.03. Spendthrift Clause. No Participant or
Beneficiary shall have the right to transfer, assign, alienate,
anticipate, pledge or encumber any part of such benefits, nor shall such
benefits, or any part of the Trust Fund from which such benefits are
payable, be subject to seizure by legal process by any creditor of such
Participant or Beneficiary. Any attempt to effect such a diversion or
seizure as aforedescribed shall be deemed null and void for all purposes
hereunder to the extent permitted by ERISA and the Code. Notwithstanding
the foregoing, the Company shall recognize a qualified domestic relations
order with respect to child support, alimony payments or marital property
rights if the Company determines that it meets the applicable requirements
of Section 414(p) of the Code. The Company shall establish written
procedures concerning the notification of interested parties and the
determination of the validity of such orders. If any such order so
directs, distribution of benefits to the alternate payee may be made at a
time not permitted for distributions to the Participant.
Section 11.04. Exclusive Benefit. Anything in the Plan which
might be construed to the contrary notwithstanding, it shall be impossible
at any time prior to the satisfaction of all liabilities with respect to
Participants and their Beneficiaries under the Plan for any part of the
Trust Fund assets to be used for, or diverted to, purposes other than the
exclusive benefit of such Participants or their Beneficiaries and
defraying the reasonable expenses of administering the Plan and the Trust
Fund. In no event shall any Employer receive at any time any amounts from
such assets except as provided in Section 6.05 or 11.08 hereof or the
event of a mistake of fact pursuant to the directions of the Company
within one year after such mistake is made. Notwithstanding any provision
herein to the contrary, employer contributions hereunder are conditioned
upon their deductibility under Code Section 404. To the extent a
deduction is disallowed, contributions may be returned to the Employer
within one year after such disallowance.
Section 11.05. Full Satisfaction of Claims. Any payment or
distribution to any Participant or Beneficiary shall be in full
satisfaction of all claims against the Trust Fund, the Trustee, any
Investment Manager and any Employer and shall give rise to no claim or
liability notwithstanding it shall later appear that such payment or
distribution was made under a mistake of fact or law, except as otherwise
specifically provided by the Code or ERISA. No payment shall be made
hereunder which would be in violation of any applicable law or
governmental regulation as determined by the Company.
Section 11.06. Indemnification. The Employers shall indemnify
any director and/or employee of any Employer who acts with respect to the
Plan as directed by the Company or as a Trustee and shall hold any such
director and/or employee harmless from the consequences of his acts or
conduct in connection with the Plan except to the extent that such
consequences are the result of willful misconduct or bad faith shown on
the part of such director and/or employee.
Section 11.07. Successors and Assigns. The Plan herein
contained shall be binding upon the successors and assigns of the
Employers and the Trustee.
Section 11.08. IRS Approval. Any other provision to the
contrary not-withstanding, the effectiveness of this Plan is subject to
the condition subsequent of the Company obtaining a determination from the
Internal Revenue Service that the Plan meets the requirements for
qualification contained in Code Section 401(a) and that the Trust Fund is
exempt from tax under Code Section 501(a).
Section 11.09. Plan Adoption by Controlled Group. (a) With the
written consent of the Company, an Employer as defined in Section 2.01(i)
hereof (other than the Company) may by resolution of a corporate officer
or by other appropriate means adopt this Plan for the benefit of such of
its employees whom it certifies to be eligible under qualifications set
forth in such resolution or other adoption document. When the Plan is so
adopted, the terms and conditions hereof, subject to the limitations or
modifications provided in the resolution or document, shall apply to such
participating Employer. The Company is hereby designated as the agent of
each participating Employer for the purpose of amendment of the Plan;
provided, however, that any participating Employer shall retain full right
to terminate participation hereunder or contributions hereto as to its
employees, upon 60 days' written notice of its intention to the Company
and the Trustee, unless a shorter notice shall be agreed to by the
Company.
(b) If an Employee receives Compensation from more than one
participating Employer in any Plan Year, the total amount of such
Compensation shall be considered for the purposes of the Plan as having
been paid by one participating Employer. The respective participating
Employers shall share in contributions to the Plan on account of said
Employee.
(c) Each participating Employer shall pay such part of the
expenses incurred in the administration of the Plan as the Company shall
determine.
IN WITNESS WHEREOF, the Company has caused these presents to be
executed by its officers thereunto duly authorized as of this 28th day of
February, 1996.
BANTA CORPORATION
By: /s/ Ronald D. Kneezel
Ronald D. Kneezel, Vice President,
General Counsel and Secretary
EXHIBIT 4.2
BANTA HOURLY 401(k) PLAN TRUST
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Gender, Number and Construction of Terms . . . . 3
ARTICLE II. ESTABLISHMENT, ACCEPTANCE AND PURPOSE OF TRUST . . . . . 4
Section 2.01. Establishment of Trust . . . . . . . . . . . . . 4
Section 2.02. Trustee Acceptance . . . . . . . . . . . . . . . 4
Section 2.03. Purpose of Trust . . . . . . . . . . . . . . . . 4
ARTICLE III. PAYMENTS FROM FUND . . . . . . . . . . . . . . . . . . 5
ARTICLE IV. INVESTMENT OF TRUST FUND . . . . . . . . . . . . . . . . 6
Section 4.01. Investment of Trust Fund . . . . . . . . . . . . 6
Section 4.02. Investment of Cash Reserves . . . . . . . . . . . 6
Section 4.03. Loans to Participants . . . . . . . . . . . . . . 6
ARTICLE V. POWERS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . 7
Section 5.01. General Powers . . . . . . . . . . . . . . . . . 7
Section 5.02. Authority of Investment Manager . . . . . . . . . 9
Section 5.03. Special Provisions Relating to Company Stock . . 10
ARTICLE VI. VALUATION OF TRUST FUND AND MAINTENANCE OF PARTICIPANT
ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.01. Valuation of Trust Fund . . . . . . . . . . . . . 11
Section 6.02. Valuation Date . . . . . . . . . . . . . . . . . 11
ARTICLE VII. REPORTS AND ACCOUNTINGS . . . . . . . . . . . . . . . . 12
Section 7.01. Audit of Trustee Accounts . . . . . . . . . . . . 12
Section 7.02. Trust Fund . . . . . . . . . . . . . . . . . . . 12
Section 7.03. Settlement of Trustee Accounts . . . . . . . . . 12
ARTICLE VIII. TAXES, EXPENSES, TRUSTEE COMPENSATION . . . . . . . . 14
Section 8.01. Expenses and Trustee Compensation . . . . . . . . 14
Section 8.02. Taxes . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IX. FIDUCIARIES AND TRUSTEE LIABILITY . . . . . . . . . . . 15
Section 9.01. Named Fiduciaries . . . . . . . . . . . . . . . . 15
Section 9.02. Allocation of Fiduciary Responsibilities . . . . 15
Section 9.03. Trustee Liability . . . . . . . . . . . . . . . . 15
Section 9.04. Trustee Litigation and Indemnification . . . . . 15
ARTICLE X. SUCCESSOR TRUSTEE . . . . . . . . . . . . . . . . . . . . 17
Section 10.01. Removal or Resignation of Trustee . . . . . . . . 17
Section 10.02. Successor Trustee or Trust Fund . . . . . . . . . 17
ARTICLE XI. AMENDMENT OR TERMINATION . . . . . . . . . . . . . . . . 18
Section 11.01. Amendment . . . . . . . . . . . . . . . . . . . . 18
Section 11.02. Termination or Partial Termination . . . . . . . 18
Section 11.03. Reversion of Contributions . . . . . . . . . . . 18
Section 11.04. Designation of Participating Employers . . . . . 19
ARTICLE XII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 20
Section 12.01. No Assignment of Interest . . . . . . . . . . . . 20
Section 12.02. Responsibility of Insurance Company . . . . . . . 20
Section 12.03. Wisconsin Law to Govern . . . . . . . . . . . . . 20
Section 12.04. Illegality . . . . . . . . . . . . . . . . . . . 20
Section 12.05. Counterparts . . . . . . . . . . . . . . . . . . 20
Section 12.06. Successors and Assigns . . . . . . . . . . . . . 20
BANTA HOURLY 401(k) PLAN TRUST
THIS TRUST AGREEMENT made and entered into as of this 28th day
of February, 1996, by and between BANTA CORPORATION, a Wisconsin
corporation (hereinafter called the "Company"), and FIRST TRUST NATIONAL
ASSOCIATION, a national banking association (hereinafter called the
"Trustee"), represents the merger and continuation of three separate
trusts;
W I T N E S S E T H :
WHEREAS, the Company maintains a profit sharing plan intended to
qualify under Section 401(a) of the Internal Revenue Code of 1986, as
amended, which plan incorporates a savings feature intended to constitute
a qualified "cash or deferred arrangement" within the meaning of Section
401(k) of the Internal Revenue Code; and
WHEREAS, the Company and a predecessor trustee heretofore
established three separate trusts to receive and hold for investment
contributions under the three predecessor plans and to distribute the same
to Participants and Beneficiaries in accordance with the terms of said
plans and wish to merge and continue said trusts on the terms and
conditions hereinafter set forth; and
WHEREAS, the Company has authorized the execution of this
Agreement with the Trustee.
NOW, THEREFORE, the Company and the Trustee hereby agree as
follows:
ARTICLE I. DEFINITIONS
Section 1.01. Definitions. The following words and phrases
when used herein shall have the following meanings, except as otherwise
required by the context:
(a) "Code" means the Internal Revenue Code of 1986, as
interpreted by applicable regulations and rulings issued pursuant thereto,
all as amended and in effect from time to time.
(b) "Company" means Banta Corporation, a Wisconsin corporation.
Action by any corporate officer of the Company is effective action by the
Company.
(c) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time.
(d) "Investment Fund" means an unsegregated fund established
within the Trust and invested in securities, insurance contracts or other
property of such type and characteristics as may be determined pursuant to
the terms of the Plan and this Agreement.
(e) "Investment Manager" means the Company or any other person,
corporation or association appointed by the Company to direct the
investment and reinvestment of all or any portion of the assets of the
Trust Fund in accordance with Article V. Each Investment Manager other
than the Company shall be:
(i) registered as an investment advisor under the
Investment Advisers Act of 1940; or
(ii) a bank, as defined in said Investment Advisers
Act of 1940; or
(iii) an insurance company qualified to perform the
services of Investment Manager under the laws
of more than one state;
and shall acknowledge in writing that it is a fiduciary with respect to
the Plan.
(f) "Participating Employer" means the Company and any
subsidiary or affiliate of the Company which adopts the Plan with the
Company's consent.
(g) "Plan" means the Banta Hourly 401(k) Plan, as amended and
in effect from time to time.
(h) "Trust" means the Banta Hourly 401(k) Plan Trust as set
forth in this Trust Agreement.
(i) "Trust Fund" means all of the assets held by the Trustee
under this Agreement.
(j) "Trustee" means First Trust National Association, or any
successor or successors appointed pursuant to Section 10.02 to hold and
administer the Trust Fund in accordance with this Trust Agreement.
Section 1.02. Gender, Number and Construction of Terms.
Whenever any words are used herein in the masculine, they shall be
construed as though they were used in the feminine in all cases where they
would so apply, and wherever any words herein are used in the singular or
the plural, they shall be construed as though they were used in the plural
or singular, as the case may be, in all cases where they would so apply.
The words "hereof", "herein", "hereunder" and other similar compounds of
the word "here" shall mean and refer to the entire Trust Agreement and not
to any particular Article or Section. Titles of Articles and Sections
hereof are for general information only, and the Trust Agreement is not to
be construed by reference thereto.
ARTICLE II. ESTABLISHMENT, ACCEPTANCE AND PURPOSE OF TRUST
Section 2.01. Establishment of Trust. The Company hereby
continues with the Trustee a Trust in order to implement and carry out the
purposes of the Plan.
Section 2.02. Trustee Acceptance. The Trustee hereby accepts
the Trust Fund consisting of such cash and other property acceptable to
the Trustee as shall from time to time be paid or delivered to the
Trustee, including, but not limited to, contributions under the Plan,
together with the earnings, income, additions and appreciation thereon and
thereto. The Trustee shall hold the Trust Fund in trust and deal with it
in accordance with the terms and conditions of this Agreement.
Section 2.03. Purpose of Trust. This Trust is for the sole
purpose of accumulating and distributing the Trust Fund to provide
benefits under the provisions of the Plan as from time to time amended.
Except for that part of the Trust Fund which may be required to pay taxes
and administration expenses and except as provided in Section 11.03, at no
time prior to the satisfaction of all liabilities with respect to the
participants and their beneficiaries under the Plan, shall any part of the
corpus or income of the Trust Fund be used for or diverted to purposes
other than for the exclusive benefit of such participants and their
beneficiaries.
ARTICLE III. PAYMENTS FROM FUND
It shall be the duty of the Trustee hereunder to make payments
out of the Trust Fund to such persons, in such manner, at such times and
in such amounts as may be specified in written directions received from
time to time by the Trustee from the Company or other person or group of
persons having the authority under the Plan to authorize and direct such
payments. The identity of such person or group of persons shall be
certified to the Trustee by the Company. All such directions to the
Trustee for payments out of the Trust Fund shall be in writing, signed by
a duly authorized person or persons. The Trustee shall be fully protected
in making payments out of the Trust Fund in accordance with such written
directions. Should any payments made by the Trustee out of the Trust Fund
be unclaimed, the Trustee shall notify the Company or such other person
who had directed such payment to be made, and shall dispose of such
payments as the Company or such other authorized person shall then direct.
Except as provided in this Article III, the Trustee shall not be
responsible for matters pertaining to the operation and administration of
the Plan, and it is specifically provided that the Trustee shall not be
deemed to be the administrator, as defined by ERISA, of the Plan.
ARTICLE IV. INVESTMENT OF TRUST FUND
Section 4.01. Investment of Trust Fund. The Trustee shall
establish and maintain the Investment Funds for the collective investment
and reinvestment of the Trust Fund pursuant to the direction of the
participants under the Plan. The Company shall instruct the Trustee as to
the division of contributions among the Investment Funds and the transfer
of assets among such Funds. Subject to such guidelines as may be
established by the Company, the management of each Investment Fund's
investment and reinvestment shall be at the sole discretion of the Trustee
or an Investment Manager, as the case may be. The Company may from time
to time revise, eliminate or establish one or more Investment Funds. The
Company shall prescribe the investment characteristics and general types
of investments for any such Investment Fund in writing and shall
communicate such information to Plan participants and to the Trustee.
Section 4.02. Investment of Cash Reserves. To preserve
sufficient liquidity to make payments as required or to meet current
expenses, the Trustee may hold part of the Trust Fund in cash, and shall
not be liable for interest on moneys so held. Any Investment Fund may, in
the discretion of the Trustee or Investment Manager, be partially invested
from time to time in short-term interest-bearing securities.
Section 4.03. Loans to Participants. In accordance with the
terms of the Plan, loans may be made to Participants. Such loans shall
not be treated as assets of any Investment Fund but shall be investments
for the sole benefit of the borrowing participant or his beneficiary.
ARTICLE V. POWERS OF TRUSTEE
Section 5.01. General Powers. Subject to the right of Plan
participants to direct the investment and reinvestment of their Plan
account as provided in the Plan, and subject to the control of an
Investment Manager as provided in Section 5.02, the Trustee is authorized
and empowered:
(a) to invest and reinvest the assets of the Trust Fund,
without distinction between principal and income, in shares, stocks,
securities or other evidences of ownership (whether common or preferred),
bonds, notes, debentures or other obligations of every description
(whether or not secured by mortgages on real or personal property or other
collateral wherever situated), including securities issued by the Company
and including any part interest in a bond and mortgage or note or mortgage
(whether or not insured), trade acceptances or other commercial paper,
mutual funds, loans or deposits at interest on call or on time (whether or
not secured by collateral and/or maintained with the Trustee or any
affiliate thereof), and any other property or part interest in property,
real or personal, domestic or foreign (whether or not productive of income
or consisting of wasting assets), including interests in any common,
pooled, diversified or consolidated fund or group trust qualified under
Section 401(a) of the Code (or the corresponding provisions of any
subsequent federal internal revenue law) and maintained by a bank or other
financial institution or by any other third party (including the Trustee
or any affiliate thereof) for the purpose of investing assets held in
trust under the plans qualified under said Code Section, or interests in
any other common trust fund maintained by the Trustee as a short term
investment fund, which fund may be designated by an Investment Manager,
from time to time and at any time, whereupon, during the effective period
of such designation, any instrument governing such trust or fund shall be
deemed to be incorporated in and made a part of this Agreement as fully
and to all intents and purposes as if set forth herein at length;
(b) to sell, exchange, convey, transfer or dispose of and also
to grant options with respect to, any property, whether real or personal
at any time held by it, and any sale may be made by private contract or by
public auction, and no person dealing with the Trustee shall be bound to
see to the application of the purchase money or to inquire into the
validity, expediency or propriety of any such sale or other disposition;
(c) to retain, manage, operate, repair and improve and to
mortgage or lease for any period any real estate held by the Trustee;
(d) to compromise, compound, settle, or submit to arbitration
any debt, claim or obligation due from third persons to it or to third
persons from it, as Trustee hereunder and to reduce the rate of interest
on, to extend or otherwise modify, or to foreclose upon default or
otherwise enforce any such obligation;
(e) to vote in person or by proxy on any stocks, bonds or other
securities held by it; to exercise any options appurtenant to any stocks,
bonds or other securities for the conversion thereof into other stocks,
bonds or securities, or to exercise any rights to subscribe for additional
stocks, bonds or other securities and to make any and all necessary
payments therefor; to join in, dissent from or oppose the reorganization,
recapitalization, consolidation, sale or merger of corporations or
properties in which it may be interested as Trustee, upon such terms and
conditions as it may deem wise, and to accept any securities which may be
issued upon any such reorganization, recapitalization, consolidation, sale
or merger, and thereafter to hold the same;
(f) to make, execute, acknowledge and deliver any and all
deeds, leases, assignments, documents of transfer and conveyance and any
and all other instruments that may be necessary or appropriate to carry
out the powers herein granted;
(g) to enforce any right, obligation or claim in its discretion
and in general to protect in any way the interests of the Trust Fund,
either before or after default, and in case it shall consider such action
for the best interests of the Trust Fund, in its discretion, to abstain
from the enforcement of any right, obligation or claim or to abandon any
property, whether real or personal, which at any time may be held by it;
(h) to borrow or raise moneys for the purposes of this Trust in
such amount and upon such terms and conditions as the Trustee in its
discretion may deem advisable; and for any sums so borrowed to issue its
promissory note as Trustee and to secure the repayment thereof by pledging
all or any part of the Trust Fund; and no person loaning money to the
Trustee shall be bound to see to the application of the money loaned or to
inquire into the validity, expediency or propriety of any such borrowing;
(i) to cause any investments of the Trust Fund to be registered
in, or transferred into, its name as Trustee or the name of its nominee or
nominees or to retain them unregistered or in form permitting
transferability by delivery, but the books and records of the Trustee
shall at all times show that all such investments are part of the Trust
Fund;
(j) to do all acts which it may deem necessary or proper and to
exercise any and all powers of the Trustee under this Agreement upon such
terms and conditions as to it may seem for the best interests of the Trust
Fund;
(k) from time to time, to employ such legal, actuarial,
accounting, investment and other assistants as it may deem necessary for
administering the Trust Fund which assistants may be those consulted by
the Company or any Participating Employer, the Plan and/or other
fiduciaries; in any case in which the Trustee utilizes such services, it
shall retain exclusive authority and discretion for administration and
operation of the Trust Fund;
(l) to own any contract with an insurance company held as an
investment of the Trust Fund, and to exercise any option, privilege or
benefit in connection therewith, including, without limitation, the right
to collect and receive the proceeds and all dividends or other
distributions thereon; to surrender any such contract for cash; to change
the persons to whom and the manner in which the proceeds of any such
contract shall be paid; to convert any such contract from one form to
another; to sell or assign any such contract; to execute all necessary
receipts and releases to any insurance company; and to compromise or
adjust any claim arising out of any such contracts; and
(m) to hold uninvested reasonable amounts of cash whenever it
is deemed advisable to do so to facilitate disbursements or for other
operational reasons and to deposit the same, with or without interest, in
the commercial or savings departments of the Trustee or any affiliate
thereof.
Section 5.02. Authority of Investment Manager. (a) The
Company may appoint one or more Investment Managers to direct the
investment and reinvestment of all or any portion of the Trust Fund. The
Company may modify or terminate such designations from time to time. So
long as, and to the extent that, any designation of an Investment Manager
is in effect, the Trustee shall invest, reinvest and retain the Portfolio
assigned to an Investment Manager in accordance with the instructions
received from such Investment Manager, and with respect to assets under
the control of such Investment Manager, shall follow any instructions
received by it from such Investment Manager as to the exercise by the
Trustee of its powers hereunder. So long as, and to the extent that, no
such designation is in effect, the Trust Fund assets shall be invested and
reinvested by the Trustee. Notwithstanding the foregoing, the Company may
not be appointed to act as Investment Manager or otherwise direct the
Trustee with respect to the exercise of its powers with respect to the
assets of the Company Stock Fund.
(b) All transactions for a portion of the Trust Fund controlled
by an Investment Manager shall be made by the Trustee upon such terms and
conditions and from and through such principals or agents as the
Investment Manager may direct. An Investment Manager may issue orders for
the purchase or sale of securities directly to a broker or dealer.
Written notification of the issuance of each such order shall be given
promptly to the Trustee by such Investment Manager, and the execution of
each such order shall be confirmed by the broker to such Investment
Manager and to the Trustee. Such notification shall be authority to the
Trustee to receive securities purchased against payment therefor and to
deliver securities sold against receipt of the proceeds therefrom, as the
case may be.
(c) Unless the Trustee participates knowingly in, or knowingly
undertakes to conceal, a breach of fiduciary duty by an Investment
Manager, the Trustee shall not be liable for any act or omission of such
Investment Manager, and shall not be under any obligation to invest or
otherwise manage the assets of the Plan that are subject to the management
of such Investment Manager. Without limiting the generality of the
foregoing, the Trustee shall not be liable by reason of its taking or
refraining from taking, at the direction of an Investment Manager, any
action pursuant to this Article, or pursuant to a notification of an order
to purchase or sell securities issued by an Investment Manager, nor shall
the Trustee be liable by reason of its refraining from taking any action
because of the failure of an Investment Manager to give such direction or
order. Except as provided in this Section 5.02, the Trustee shall be
under no duty to question or to make inquiries as to any direction or
order or failure to give direction or order by an Investment Manager. So
long as the designation of an Investment Manager remains in effect, the
Trustee shall be under no duty to make any review of the investments
acquired at the direction or order of such Investment Manager and shall be
under no duty to make any recommendations with respect to disposing of or
continuing to retain any such investment.
Section 5.03. Special Provisions Relating to Company Stock.
(a) Shares of Company Stock shall be acquired by the Trustee at such
times and from such sources as the Trustee, in its sole discretion, may
decide, which may include acquisitions (i) in the open market, (ii) from
private sources, which may include the Company or employees or former
employees of a Participating Employer, (iii) as part of the Participating
Employers' contributions, (iv) by the exercise of rights, or (v) in such
other manner as the Trustee may from time to time determine.
(b) The Trustee shall exercise voting rights and respond to
tender or exchange offers with respect to Company Stock as provided in
Sections 8.10 and 8.11 of the Plan.
ARTICLE VI. VALUATION OF TRUST FUND AND
MAINTENANCE OF PARTICIPANT ACCOUNTS
Section 6.01. Valuation of Trust Fund. As of each "Valuation
Date" (as defined in Section 6.02 hereof), each Investment Fund shall be
valued and the net income (or loss) attributable to each such Fund shall
be allocated to the accounts of participants, former participants and
beneficiaries in accordance with the terms of the Plan.
Section 6.02. Valuation Date. The Valuation Date for all
purposes of this Article VI shall be each business day.
ARTICLE VII. REPORTS AND ACCOUNTINGS
Section 7.01. Audit of Trustee Accounts. The Trustee shall
keep accurate and detailed accounts of all investments, receipts,
disbursements and other transactions hereunder for the Trust Fund and all
accounts, books and records relating thereto shall be open to inspection
and audit at all reasonable times during business hours of the Trustee by
any person designated by the Company.
Section 7.02. Trust Fund. (a) Within ninety (90) days after
the end of each calendar year, the Trustee shall prepare and deliver to
the Company a statement of the accounts and proceedings of the Trust Fund
(which statement shall include substatements showing the accounts and
proceedings of each Investment Fund) for such year. Each such statement
(and each such substatement) shall be in a form satisfactory to the
Company, shall contain a listing of transactions in the Trust Fund (and in
each fund) during the year, and shall contain such additional information
as shall be agreed upon by the Trustee and the Company. In addition to
the foregoing, the Trustee shall provide to the Company such additional
reports, information, cooperation and assistance as it may, from time to
time and at any time, request and require in connection with its operation
and functions.
(b) In addition, as soon as practicable after the removal or
resignation of the Trustee or the termination, in whole or in part, of the
Plan, the Trustee shall file with the Company a written account of all of
its transactions relating to the Plan during the period from the last
previous accounting to the date of such removal, resignation or
termination, including the information described in subsections (a) and
(b) of this Section 7.02.
Section 7.03. Settlement of Trustee Accounts. In case of any
disapproval of any statement of accounts of the Trustee, an audit of such
statement shall be made by an independent certified public accountant
appointed by the Company, unless a corrected statement shall have been
rendered to the Company and approved in writing by the Company. Upon
completion of such audit, the inaccuracies in such statement so audited,
if any, shall be corrected to conform to such audit and a corrected
statement shall be delivered by the Trustee to the Company. Any such
corrected statement shall stand approved as the statement of account of
the Trustee as to all matters embraced therein, without further approval.
An approved or corrected statement of account shall constitute an account
stated between the Trustee and the Company as to all matters embraced in
such statement, and shall be binding and conclusive upon all persons
interested in the Trust Fund to the same extent as if the account of the
Trustee had been settled and allowed in a proceeding for judicial
settlement of its accounts in any court of competent jurisdiction, to
which all such persons had been made parties; provided, however, that no
such statement of accounts nor the Company's approval thereof shall be
deemed to relieve the Trustee of any liability which may be imposed upon
it for violation of a specific provision of ERISA and/or the Code;
provided further that nothing contained in this Trust Agreement shall be
deemed to deprive the Trustee and/or the Company of the right to have a
judicial settlement of the Trustee's accounts.
ARTICLE VIII. TAXES, EXPENSES, TRUSTEE COMPENSATION
Section 8.01. Expenses and Trustee Compensation. Unless they
are paid by the Company or a Participating Employer, the Trustee shall pay
from the Trust Fund all reasonable expenses incurred in administering this
Trust, including but not limited to legal and accounting fees, brokerage
commissions and costs, such compensation of the Trustee as shall be agreed
upon in writing between the Company and the Trustee, and such fees, costs
and other expenses that the Company may certify in writing to the Trustee
for payment from the Trust Fund.
Section 8.02. Taxes. The Trustee, after receiving the written
approval of the Company, shall pay from the Trust Fund 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, in its
discretion, may contest the validity or the amount of any such taxes.
ARTICLE IX. FIDUCIARIES AND TRUSTEE LIABILITY
Section 9.01. Named Fiduciaries. The Company, any
Participating Employers, and the Trustee are named fiduciaries within the
meaning of ERISA with respect to this Trust and the Plan. Each Investment
Manager is such a named fiduciary with respect to the portion of the Trust
Fund that is subject to the control of such Investment Manager.
Section 9.02. Allocation of Fiduciary Responsibilities. The
fiduciary responsibilities (within the meaning of ERISA) allocated to each
named fiduciary designated in Section 9.01 hereof shall consist of the
responsibilities, duties, authority and discretion of such named fiduciary
which are expressly provided in this Trust Agreement, any agreement with
an Investment Manager and/or the Plan. Each such named fiduciary may
obtain the services of such legal, accounting, investment and other
assistants as it deems appropriate, any of whom may be assistants who also
render services to any other such named fiduciary, and Plan and/or the
Company or any Participating Employer; provided, however, that where such
services are obtained, such named fiduciary shall not be deemed to have
delegated any of its fiduciary responsibilities to any such assistant but
shall retain full and complete authority over and responsibility for any
activities of such assistant.
Section 9.03. Trustee Liability. The Trustee shall not be
liable for the making, retention or sale of any investment or reinvestment
made by it as herein provided or for any loss to or diminution of the
Trust Fund, or for anything done or omitted to be done by it, except as
and only to the extent that such action constitutes a violation of a
specific provision of ERISA and/or the Code. The Trustee shall not be
liable for any act which it has performed pursuant to the written
direction of the Company or any Investment Manager, except as and only to
the extent such act constitutes a violation of a specific provision of
ERISA and/or the Code.
Section 9.04. Trustee Litigation and Indemnification. (a) The
Trustee shall have the power to commence or defend suits or legal or
administrative proceedings and, with the consent of the Company, to
settle, compromise or submit to arbitration, any claims, debts or damages
due or owing to or from the Trust Fund; provided, however, that the
Trustee shall not be required to institute suit or maintain any litigation
unless the Trust Fund holds sufficient funds for this purpose or unless it
has been indemnified to its satisfaction for its counsel fees, costs,
disbursements and all other expenses and liabilities to which it may be
subjected by such suit; provided, further, that the Trustee may utilize
the proceeds of any contract to meet expenses incurred in enforcing
payment of such contract.
(b) The Company agrees, directly from its own assets, to
indemnify and hold harmless the Trustee against all claims, liabilities,
damages, expenses (including reasonable counsel fees) or other charges
incurred by or asserted against the Trustee as a direct or indirect result
of acting or refraining from acting pursuant to any directions pursuant to
the terms of the Plan, or refraining from acting in the absence of any
required directions, from the Company, any Investment Manager, or any
person or committee authorized to act on behalf thereon. As a condition
of eligibility for such indemnification, however, the Trustee shall
provide prompt written notice of such claim to the Company and consult
with each regarding any response to such claim. Prompt written notice
means notice within 30 days of the date the Trustee has knowledge. Any
expense incurred by the Trustee before such notice is given shall not be
reimbursed.
ARTICLE X. SUCCESSOR TRUSTEE
Section 10.01. Removal or Resignation of Trustee. The Trustee
may be removed by the Company at any time upon sixty (60) days' notice in
writing to the Trustee, or upon shorter notice acceptable to the Trustee.
The Trustee may resign at any time upon sixty (60) days' notice in writing
to the Company, or upon shorter notice acceptable to the Company. In the
event of such removal or resignation, the Trustee shall have the right to
have its accounts settled as provided in Section 7.03 hereof.
Section 10.02. Successor Trustee or Trust Fund. (a) Upon such
removal or resignation of the Trustee, the Company shall either (i)
appoint a successor trustee who shall have the same powers and duties as
those conferred upon the Trustee hereunder and, upon acceptance of such
appointment by the successor trustee, the Trustee shall assign, transfer
and pay over to such successor trustee the funds and properties then
constituting the Trust Fund, or (ii) establish an alternative funding
medium and the Trustee shall assign, transfer and pay over the Trust Fund,
as then constituted, upon the directions of the Company. The Trustee is
authorized, however, to reserve a reasonable amount for payments of its
fees and expenses in connection with the settlement of its account or
otherwise, and any balance of such reserve remaining after the payment of
such reasonable fees and expenses shall be paid over to the successor
trustee or alternative funding medium, as the case may be.
Notwithstanding any provision of the Plan or this Trust Agreement to the
contrary, the Trustee is hereby authorized to invest and reinvest such
reserves in any investment or investment vehicle appropriate for the
temporary investment of cash reserves.
(b) If for any reason the Company cannot or does not act in the
event of the resignation or removal of the Trustee, as hereinabove
provided, the Trustee may apply to a court of competent jurisdiction for
the appointment of a successor trustee. Any expenses incurred by the
Trustee in connection therewith shall be deemed to be an expense of
administration payable in accordance with Section 8.01 hereof.
ARTICLE XI. AMENDMENT OR TERMINATION
Section 11.01. Amendment. (a) The Company reserves the right
at any time and from time to time to modify or amend in whole or in part
any or all of the provisions of this Agreement by notice thereof in
writing delivered to the Trustee, or to terminate this Agreement upon
sixty (60) days' prior notice in writing delivered to the Trustee;
provided, however, that no modification or amendment which affects the
rights, duties or responsibilities of the Trustee may be made without the
Trustee's consent; and provided, further, that at no time may any part of
the corpus or income of the Trust Fund be used for, or diverted to,
purposes other than for the exclusive benefit of the participants of the
Plan and their beneficiaries, it being understood that this provision is
not to be construed to enlarge the obligations of the Company or any
Participating Employer beyond those assumed by them under the Plan.
(b) Any amendment to the Trust adopted by the Company shall be
effective for each Participating Employer without the necessity for any
further action by such Participating Employer.
Section 11.02. Termination or Partial Termination. In the event
of the termination or partial termination of the Plan, the Trustee shall
dispose of the assets of the Trust Fund or allocable portion thereof in
the manner provided in the Plan and as may be directed by the Company.
Section 11.03. Reversion of Contributions. If a contribution to
the Plan by the Company or a Participating Employer is expressly
conditioned on either the initial qualification of the Plan or the
deductibility of such contribution under the applicable provisions of the
Code and if the Plan does not so qualify or the deduction is disallowed,
in whole or in part, or in any case in which a contribution is made under
a mistake of fact, then such contribution shall, upon written direction of
the Company, be returned to the Company or such Participating Employer
within one year after the date of denial of initial qualification of the
Plan, disallowance of the deduction, or the payment of the contributions
made under a mistake of fact, as the case may be; provided, however, that,
in the instance of a non-deductible contribution, such contribution shall
be returned only to the extent of the disallowance; provided further, that
the provisions of this Section 11.03 shall not be effective and operative
to the extent such provisions would cause the disqualification of the
Plan, result in a contribution being disallowed or otherwise contravene
any provision of law, but to the extent such provisions may be effective
and operative, the Company and each Participating Employer hereby declares
its intention and action that every contribution by it to the Plan shall
be conditional upon such initial qualification or such deductibility, as
the case may be.
Section 11.04. Designation of Participating Employers. The
subsidiaries or affiliates of the Company which, as of the execution date
hereof, have adopted the Plan as Participating Employers are identified on
Appendix A attached hereto and made a part of this Trust Agreement. The
Company may from time to time designate additional subsidiaries or
affiliates to become Participating Employers hereunder and such
corporations shall file with the Trustee a certified copy of a resolution
of a corporate officer evidencing its adoption of the Plan and this Trust,
which action shall constitute delegation of full and exclusive power and
authority to the Company to take on behalf of such Participating Employer
all necessary and/or appropriate actions respecting the Plan and this
Trust, including without limitation, the amendment, modification or
termination thereof and the enforcement of the terms and conditions
thereof. Such Participating Employer need not be a party signator to the
Trust Agreement nor shall it be required that such Participating Employer
receive notice of or consent to any non-action hereunder of the Company
and/or named fiduciary designated in Section 9.01 hereof.
ARTICLE XII. MISCELLANEOUS
Section 12.01. No Assignment of Interest. No interest in, and
no rights or claims to, any of the assets of the Trust Fund shall be
assignable in anticipation of payment either by voluntary or involuntary
act or by operation of law, or be liable in any way for the debts,
obligations or defaults of any participant of the Plan. Any attempt at
assignment or other disposition of such assets shall be void.
Notwithstanding the foregoing, the Company may direct the Trustee to
recognize a qualified domestic relations order with respect to child
support, alimony payments, or marital property rights if the Company
determines that such order meets the applicable requirements of Section
414(p) of the Code.
Section 12.02. Responsibility of Insurance Company. No
insurance company which may issue any contract held as part of the Trust
Fund shall be obliged to inquire into the terms of this Agreement or be
responsible for any action of the Company or the Trustee. No such
insurance company shall be obligated to see to the distribution or further
application of any proceeds paid by it to the Trustee or paid in
accordance with the written direction of the Trustee, and any such payment
of proceeds shall be a complete discharge to the insurance company
therefor.
Section 12.03. Wisconsin Law to Govern. This Agreement shall be
construed and enforced according to the laws of the State of Wisconsin,
and all provisions hereof shall be administered according to the laws of
said state.
Section 12.04. Illegality. In case any provision of this Trust
Agreement shall be held illegal or invalid for any reason, said illegality
or invalidity shall not affect the remaining parts of this Trust Agreement
which shall then be construed and enforced as if such illegal or invalid
provision had never been inserted herein.
Section 12.05. Counterparts. This Trust Agreement may be
executed in a number of counterparts, each of which shall be deemed an
original, and such counterparts shall constitute but one and the same
instrument and may be sufficiently evidenced by any one counterpart.
Section 12.06. Successors and Assigns. This Trust Agreement
shall be binding and inure to the benefit of the successors and assigns of
the Company and the Trustee, respectively.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and attested in duplicate originals by their
respective officers thereunder duly authorized, and their corporate seals
to be hereunto affixed, as of the day and year first above written.
BANTA CORPORATION
By: /s/ Ronald D. Kneezel
Ronald D. Kneezel, Vice President,
General Counsel and Secretary
FIRST TRUST NATIONAL ASSOCIATION, Trustee
By: /s/
[Corporate Seal]
Attest: /s/
<PAGE>
APPENDIX A
KCS Industries, Inc.
Danbury Printing & Litho, Inc.
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
February 28, 1996
Banta Corporation
River Place
225 Main Street
P.O. Box 8003
Menasha, Wisconsin 54952
Re: Banta Hourly 401(k) Plan
Gentlemen:
We have acted as counsel for Banta Corporation, 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
200,000 shares of the Company's common stock, $.10 par value (the "Common
Stock"), rights to purchase Common Stock (the "Rights") associated with
each share of Common Stock and interests in the Banta Hourly 401(k) Plan
(the "Plan") which may be issued or acquired pursuant to the Plan. The
terms of the Rights are as set forth in that certain Rights Agreement (the
"Rights Agreement"), dated as of October 29, 1991, by and between the
Company and Firstar Trust Company (f/k/a First Wisconsin Trust Company).
We have examined: (a) the Plan; (b) signed copies of the
Registration Statement; (c) the Company's Restated Articles of
Incorporation and By-laws, as amended to date; (d) the Rights Agreement;
(e) resolutions of the Company's Board of Directors relating to the Plan
and the issuance of securities thereunder; and (f) such other documents
and records as we have deemed necessary to enable us to render this
opinion.
Based on 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. It is presently contemplated that the shares of Common
Stock to be acquired by the Plan will either be purchased in the open
market or purchased directly from the Company. To the extent that the
shares of Common Stock acquired by the Plan shall constitute shares issued
by the Company, such shares of Common Stock, when issued pursuant to the
terms and conditions of the Plan, and as contemplated in the Registration
Statement, will be validly issued, fully paid and nonassessable, except
with respect to wage claims of, or other debts owing to, employees of the
Company for services performed, as provided in Section 180.0622(2)(b) of
the Wisconsin Business Corporation Law (and judicial interpretations
thereof).
3. The Rights when issued pursuant to the terms of the Rights
Agreement will be validly issued.
Bernard S. Kubale, a partner in the firm of Foley & Lardner, is
a director of the Company.
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
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference of our reports dated January 30, 1995 included in and
incorporated by reference in the Banta Corporation Form 10-K for the year
ended December 31, 1994 and all references to our firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin,
February 26, 1996.
